EXHIBIT 10.38
ICTV - WEB SITE LINK AGREEMENT
(for US-based companies)
This Agreement (the "AGREEMENT") is between ICTV, Inc., a Delaware
corporation located at 00000 Xxxxxxxxxx Xxxx, Xxx Xxxxx, XX 00000 ("ICTV") and
Entertainment Boulevard Inc., a Nevada corporation located at 0000 Xxx Xxx Xxx.,
Xxxxx 000, Xxxxxx Xxx Xxx, XX 00000 ("Company") and is effective as of
April 14, 1999 (the "EFFECTIVE DATE").
RECITALS
A. Company owns or has licensed the rights of all creative
content and resource library resident on its website at
XXX.XXXXXXXXX.XXX.
B. ICTV is in the business of developing and providing products
and services to enable cable television subscribers to access
certain computer-based technology through the incorporation of
PCs and related technology in the headends of cable television
systems ("ICTV SYSTEMS"), as described in EXHIBIT A.
C. Company wishes ICTV to link to Company's site through such
systems ("ICTV LINK") pursuant to the terms and conditions of
this Agreement.
TERMS AND CONDITIONS
The parties agree as follows:
1. DEFINITIONS.
"WEBSITE" means Company's web site at xxx.xxxxxxxxx.xxx and
any service or product available via this site.
"AUTHORIZED VIEWER" means a person who accesses any aspect of
the Website through an ICTV System.
"CABLE OPERATOR" means any and all of ICTV's direct or
indirect customers that make the ICTV System available to
Authorized Viewers or to such customers.
"ROYALTY" means the revenue share amount which Company will
pay ICTV per this Agreement.
"INTELLECTUAL PROPERTY RIGHTS" means patent rights, copyright
rights (including, but not limited to, rights in audiovisual
works and moral
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rights), trade secret rights, trademark rights, and any other
intellectual property rights recognized by the law of each
applicable jurisdiction.
"COMPANY'S MARKS" means the trademarks and/or service marks of
Company that are displayed to an Authorized Viewer in
connection with the ICTV Link.
"TERRITORY" means worldwide.
2. DELIVERY, MAINTENANCE, SUPPORT AND TRADEMARK LICENSES
(a) ICTV will implement the ICTV Link in accordance with
this Agreement no earlier than JUNE 01, 1999. ICTV
will have no other promotional or marketing
obligations under this Agreement.
(b) Company will notify ICTV prior to making any updates,
new feature additions, or other changes to the
Website that may affect the ICTV Link so that ICTV
has a reasonable opportunity to review, and prepare
for, such changes in advance.
(c) Company will maintain and handle all support issues
associated with the Website. Company will support its
customers in their use of the services and/or
products made available via the Website.
(d) The Authorized Viewer is identified currently by the
ICTV browser ID, where the browser ID includes the
string "ICTV". ICTV will promptly notify Company of
any change to such identification method that may
affect Company.
(e) Exhibit B specifies Company's services and products
on the Website as of the Effective Date. Should there
be other services or products initiated for the
Website where Company would generate revenue, ICTV
will be informed of such plans and will share in such
revenues in accordance with the provisions of this
Agreement.
(f) Subject to the terms and conditions of this
Agreement, each party to this Agreement grants to the
other party a non-exclusive, non-transferable license
for the term of this Agreement to use its trademarks
and service marks solely as specified in this
paragraph, provided that such use has been reviewed
and approved by the other party. Nothing in this
Agreement grants ownership or any rights in or to use
such trademarks and service marks, except in
accordance with this license. The rights in this
license will terminate upon any termination or
expiration of this Agreement.
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Neither party will seek to register any interest in
the trademarks and/or service marks of the other
party, or confusingly similar marks, at any time.
ICTV may display Company's Marks to Authorized
Viewers in connection with the ICTV Link. Company
may use ICTV's "ICTV" xxxx as specified in
paragraph (f) above.
(g) Company will receive no less representation and
presence than similar providers within the ICTV
system.
(h) Company will create in collaboration with and for
ICTV a Jukebox page from which videos will be
selected and displayed.
3. FINANCIAL OBLIGATIONS AND ACCOUNTING
(a) PAYMENT OF ROYALTIES. Company agrees to pay ICTV: (i)
a Royalty equal to 50% of the total revenue received
from Banner Ads served in the Music Video Jukebox
area.
(ii) 10% of sales received from every Authorized
Viewer that purchases CDs via link to online
Entertainment Boulevard's CD store. 15% of sales
received will be rewarded for sales over 7500 units
per month.
(b) TIMING AND REPORTS. Company will pay Royalties due to
ICTV within forty-five (45) days following the end of
the calendar quarter during which the Royalty
accrues. Company will pay and agrees to pay all sums
due in United State Dollars. Such payments will be
accompanied by reports showing in summary form the
appropriate calculations relating to the computation
of the Royalties. All payments and reports hereunder
will be deemed rendered when deposited, postage
prepaid, in the United States Mail, addressed to ICTV
at ICTV's address set forth on the first page hereof.
(b) AUDIT. An independent certified public accountant
selected by ICTV and reasonably acceptable to Company
may, upon reasonable notice and during normal
business hours, inspect the records in Company's
possession on which the Royalty reports are based.
If, upon performing such audit, it is determined that
Company has underpaid ICTV by an amount greater than
ten percent (10%) of the payments due in the
corresponding calendar year, Company will reimburse
ICTV for all reasonable expenses
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and costs of such audit in addition to its
obligation to make full payments under subsection
(a).
(c) INTEREST. If ICTV does not receive the applicable
Royalty payment on or before the due date of such
payment, Company will pay interest on Royalties owed
to ICTV from such date at a rate equal to the lesser
of: (i) 1.5% per month; or (ii) the highest rate
permitted by applicable law.
(d) TAXES. Company will be responsible for the payment of
any taxes arising from the payments made under this
Agreement, except for taxes on ICTV's net income.
4. WARRANTIES
(a) Each party warrants that it has full legal rights to
enter into this Agreement and to perform its
obligations hereunder.
(b) Company warrants that the Website will perform in
accordance with its documentation in all material
respects.
(c) THE WARRANTIES IN THIS SECTION ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT
NOT LIMITED TO ANY IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. INDEMNITIES.
(a) INDEMNITY BY COMPANY. Company will indemnify ICTV and
each Cable Operator (collectively, "INDEMNIFIED
PARTIES") against and hold them harmless from, and
will defend or settle at Company's own expense, any
action or other proceeding brought against an
Indemnified Party to the extent that it is based on a
claim (i) that Company's Marks infringe any
Intellectual Property Rights of a third party; or
(ii) relating to the Website. Company will pay any
and all costs, damages and expenses (including but
not limited to reasonable attorneys' fees) awarded
against an Indemnified Party in any such action or
proceeding attributable to any such claim.
(b) Company will have no obligation under this section as
to any action, proceeding or claim unless: (i)
Company is notified of it promptly; (ii) Company has
sole control of its defense and settlement; and (iii)
the Indemnified Party provides Company with
reasonable assistance in its defense and settlement.
-4-
6. CONFIDENTIALITY
(a) Each party: (i) will not disclose to any third party
or use any technical product, business, or
customer-related information disclosed to it by the
other party (collectively "CONFIDENTIAL INFORMATION")
except as expressly permitted in this Agreement; and
(ii) will take all reasonable measures to maintain
the confidentiality of all Confidential Information
of the other party in its possession or control,
which will in no event be less than the measures it
uses to maintain the confidentiality of its own
information of similar importance.
(b) "Confidential Information" will not include
information that: (i) is in or enters the public
domain without breach of this Agreement; (ii) the
receiving party lawfully receives from a third party,
or already has in its possession, without restriction
on disclosure and without breach of a nondisclosure
obligation; or (iii) the receiving party develops
independently.
(c) Each party acknowledges that the Confidential
Information of the other party contains trade
secrets, the disclosure of which would cause
substantial harm to such other party that could not
be remedied by the payment of damages alone.
Accordingly, such other party will be entitled to
seek preliminary and permanent injunctive relief and
other equitable relief for any breach of this
section.
(d) Notwithstanding the terms or conditions of any
agreement between the parties, neither party will be
obligated to disclose or use any customer-related
information in violation of applicable law.
7. LIMITATIONS OF LIABILITY
(a) EXCEPT FOR LIABILITY UNDER SECTION 5, IN NO EVENT
WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES,
WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND
WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGE, AND EVEN IF SUCH DAMAGES ARE
FORESEEABLE.
(b) ICTV'S TOTAL LIABILITY TO COMPANY UNDER THIS
AGREEMENT WILL BE LIMITED TO THE PAYMENTS
-5-
MADE UNDER THIS AGREEMENT BY COMPANY TO ICTV DURING
THE PRIOR 12 MONTHS.
8. TERM AND TERMINATION
(a) The term of this Agreement will be for one (1) year
beginning on the Effective Date. This Agreement will
automatically renew for additional one-year periods,
unless either party notifies the other in writing of
its intent not to renew at least sixty (60) days
prior to the expiration.
(b) Either party will have the right to terminate this
Agreement if:
(i) the other party breaches any material term
or condition of this Agreement and fails to
cure such breach within thirty (30) days
after written notice;
(ii) the other party becomes the subject of a
voluntary petition in bankruptcy or any
voluntary proceeding relating to insolvency,
receivership, liquidation, or composition
for the benefit of creditors; or
(iii) the other party becomes the subject of an
involuntary petition in bankruptcy or any
involuntary proceeding relating to
insolvency, receivership, liquidation or
composition for the benefit of creditors, if
such petition is not dismissed within sixty
(60) days of filing.
(c) Within thirty (30) days of the termination of this
Agreement, each party will return to the other party
or (at such other party's request) destroy all copies
of the Confidential Information of such other party
in its possession or control.
(d) The following Sections will survive the expiration or
earlier termination of this Agreements: 5, 6, 7,
8(c).
9. COMPLIANCE WITH APPLICABLE LAWS.
In performing under this Agreement, each party agrees to
comply with all applicable laws, regulations, ordinances and
statutes, including but not limited to, the export laws and
regulations of the United States and its governmental and
regulatory agencies.
-6-
10. EXCUSED PERFORMANCE.
Neither party will be deemed to be in default of any provision
of this Agreement nor be liable for any delay, failure in
performance or interruption of service, resulting directly or
indirectly from acts of God, civil, or military authority,
civil disturbance, military action, war, strikes, other
catastrophes or any other similar cause beyond its reasonable
control. Written notice to the non-affected party of any such
condition will be given by the affected party within ten (10)
days of the event.
11. DELIVERY OF NOTICES AND DELIVERY OF PAYMENTS.
Unless otherwise directed in writing by the parties, all
notices given hereunder and all payments made hereunder will
be sent to the addresses set forth on the first page hereof.
All notices, requests, consents and other communications under
this Agreement will be in writing and will be deemed to have
been delivered on the date personally delivered or on the date
deposited in the United States Postal Service, postage prepaid
by certified mail, return receipt requested, or delivered by
electronic facsimile and confirmed.
12. GENERAL
(a) This Agreement and the rights and obligations
hereunder may not be assigned in whole or in part by
Company without the prior written consent of ICTV,
which will not be unreasonably withheld.
(b) The parties are independent contractors. Nothing in
this Agreement is intended or shall be construed to
constitute either party the partner, employee or
agent of the other.
(c) Any waiver by a party under this Agreement will not
constitute a continuing waiver by such party.
(d) This Agreement will be governed by the substantive
laws of the State of California. The prevailing party
in any dispute will be entitled to receive its
reasonable fees and costs (including, without
limitation, attorneys' fees) in connection therewith.
(e) This Agreement sets forth the entire agreement
between the parties with respect to the subject
matter hereof, superseding all prior or
contemporaneous representations, understandings and
agreements between the parties with respect to the
subject matter hereof. This Agreement or any
provision hereof may be modified or waived only by a
statement in writing signed by the party against whom
enforcement of same is sought.
-7-
IN WITNESS WHEREOF, authorized representatives of the parties have executed this
Agreement as of the Effective Date
ICTV, INC. ENTERTAINMENT BOULEVARD, INC.
BY: /s/ Xxxxxxx Xxxxx BY: /s/ Xxxxxxx Xxxxx
---------------------------------- ---------------------------------
NAME: Xxxxxxx Xxxxx NAME: Xxxxxxx Xxxxx
-------------------------------- -------------------------------
TITLE: VP-Content and Bus. Dev. TITLE: CEO
------------------------------- ------------------------------
DATE: 4/21/99 DATE: 4/19/99
-------------------------------- -------------------------------
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EXHIBIT A
DESCRIPTION OF ICTV SYSTEM AND SERVICES
ICTV has developed a system for delivering interactive multimedia
content including Internet access, to residences over cable television networks
without the need for a personal computer in the home. The platform for the
system consists of hardware and software that is placed at the headend of the
cable operation and a small box placed at the user's home. This platform
provides video switching among the various applications available to the user.
The user accesses the system via cable or telephone lines connected to the small
box and can direct an on-screen pointer with a compact remote control device or
wireless keyboard.
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EXHIBIT B
DESCRIPTION OF COMPANY'S SERVICES AND PRODUCTS
Entertainment Boulevard is in the business of creating entertainment websites
geared toward the presentation of streaming media content. Currently, their
sites include Vidnet, ScreenClips, Pro Sports Net, ComedyNet, and Netfomercial.
Entertainment Boulevard's flagship site is Vidnet, an interactive music channel.
Vidnet's music video selection is updated daily and features a wide variety of
musical formats, including Rock/Metal, Pop/Dance, Urban, Country, Reggae,
Christian, Jazz/Swing and Latin. The music videos are available through
RealPlayer G2. The videos are encoded so that they can not be copied off the
on-line presentation for any other use, thus protecting the videos against any
piracy. Vidnet is in compliance with all of BMI's and ASCAP's rules and
regulations.
Vidnet links will appear in appropriate places throughout the ICTV environment.
When the subscriber clicks on the link, a co-branded ICTV/Vidnet jukebox or
player will open and play music videos. Within the player, the subscriber will
have the ability to navigate through the weekly top 20 and other available
videos, which will be seen at 300kbps. Within this player and in other
appropriate sections of the ICTV environment, users will view banner ads and
have the opportunity to purchase CD's through the Entertainment Blvd. store.
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ICTV - WEB SITE LINK AGREEMENT
(for US-based companies)
This Agreement (the "AGREEMENT") is between ICTV, Inc., a Delaware
corporation located at 00000 Xxxxxxxxxx Xxxx, Xxx Xxxxx, XX 00000 ("ICTV") and
Entertainment Boulevard Inc., a Nevada corporation located at 0000 Xxx Xxx Xxx.,
Xxxxx 000, Xxxxxx Xxx Xxx, XX 00000 ("Company") and is effective as of April 14,
1999 (the "EFFECTIVE DATE").
RECITALS
A. Company owns or has licensed the rights of all creative
content and resource library resident on its website at
XXX.XXXXXXXXXXXX.XXX.
B. ICTV is in the business of developing and providing products
and services to enable cable television subscribers to access
certain computer-based technology through the incorporation of
PCs and related technology in the headends of cable television
systems ("ICTV SYSTEMS"), as described in EXHIBIT A.
C. Company wishes ICTV to link to Company's site through such
systems ("ICTV LINK") pursuant to the terms and conditions of
this Agreement.
TERMS AND CONDITIONS
The parties agree as follows:
1. DEFINITIONS.
"WEBSITE" means Company's web site at xxx.xxxxxxxxx.xxx and
any service or product available via this site.
"AUTHORIZED VIEWER" means a person who accesses any aspect of
the Website through an ICTV System.
"CABLE OPERATOR" means any and all of ICTV's direct or
indirect customers that make the ICTV System available to
Authorized Viewers or to such customers.
"ROYALTY" means the revenue share amount which Company will
pay ICTV per this Agreement.
"INTELLECTUAL PROPERTY RIGHTS" means patent rights, copyright
rights (including, but not limited to, rights in audiovisual
works and moral
-1-
rights), trade secret rights, trademark rights, and any other
intellectual property rights recognized by the law of each
applicable jurisdiction.
"COMPANY'S MARKS" means the trademarks and/or service marks of
Company that are displayed to an Authorized Viewer in
connection with the ICTV Link.
"TERRITORY" means worldwide.
2. DELIVERY, MAINTENANCE, SUPPORT AND TRADEMARK LICENSES
(a) ICTV will implement the ICTV Link in accordance with
this Agreement no earlier than JUNE 01, 1999. ICTV
will have no other promotional or marketing
obligations under this Agreement.
(b) Company will notify ICTV prior to making any updates,
new feature additions, or other changes to the
Website that may affect the ICTV Link so that ICTV
has a reasonable opportunity to review, and prepare
for, such changes in advance.
(c) Company will maintain and handle all support issues
associated with the Website. Company will support its
customers in their use of the services and/or
products made available via the Website.
(d) The Authorized Viewer is identified currently by the
ICTV browser ID, where the browser ID includes the
string "ICTV". ICTV will promptly notify Company of
any change to such identification method that may
affect Company.
(e) Exhibit B specifies Company's services and products
on the Website as of the Effective Date. Should there
be other services or products initiated for the
Website where Company would generate revenue, ICTV
will be informed of such plans and will share in such
revenues in accordance with the provisions of this
Agreement.
(f) Subject to the terms and conditions of this
Agreement, each party to this Agreement grants to the
other party a non-exclusive, non-transferable license
for the term of this Agreement to use its trademarks
and service marks solely as specified in this
paragraph, provided that such use has been reviewed
and approved by the other party. Nothing in this
Agreement grants ownership or any rights in or to use
such trademarks and service marks, except in
accordance with this license. The rights in this
license will terminate upon any termination or
expiration of this Agreement.
-2-
Neither party will seek to register any interest in
the trademarks and/or service marks of the other
party, or confusingly similar marks, at any time.
ICTV may display Company's Marks to Authorized
Viewers in connection with the ICTV Link. Company
may use ICTV's "ICTV" xxxx as specified in
paragraph (f) above.
(g) Company will receive no less representation and
presence than similar providers within the ICTV
system.
3. FINANCIAL OBLIGATIONS AND ACCOUNTING
(a) PAYMENT OF ROYALTIES. Company agrees to pay ICTV:
(i) a Royalty equal to 50% of the total revenue
received from Banner Ads served in the Netfomercial
area .
(ii) a Royalty equal to 50% of revenues received by
Company from the infomercial companies who have
infomercials on Netfomercial for sales generated by
every Authorized Viewer that purchases merchandise
via online link to Entertainment Boulevard's
Netfomercial site.
(b) TIMING AND REPORTS. Company will pay Royalties due to
ICTV within forty-five (45) days following the end of
the calendar quarter during which the Royalty
accrues. Company will pay and agrees to pay all sums
due in United State Dollars. Such payments will be
accompanied by reports showing in summary form the
appropriate calculations relating to the computation
of the Royalties. All payments and reports hereunder
will be deemed rendered when deposited, postage
prepaid, in the United States Mail, addressed to ICTV
at ICTV's address set forth on the first page hereof.
(c) Audit. An independent certified public accountant
selected by ICTV and reasonably acceptable to Company
may, after at least thirty (30) days notice and
during normal business hours, inspect only the
records in Company's possession on which the Royalty
reports are based. All information derived by
Licensor during such audit shall be kept
confidential. Licensor may only conduct an audit once
in any calendar year and only once per statement. If,
upon performing such audit, it is determined that
Company has underpaid ICTV by an amount greater than
ten percent (10%) of the payments due in the
corresponding calendar year, Company
-3-
will reimburse ICTV for all reasonable expenses and
costs of such audit in addition to its obligation to
make full payments under subsection (a).
(d) Interest. If ICTV does not receive the applicable
Royalty payment on or before the due date of such
payment, Company will pay interest on Royalties owed
to ICTV from such date at a rate equal to the lesser
of: (i) 1.5% per month; or (ii) the highest rate
permitted by applicable law.
(e) Taxes. Company will be responsible for the payment of
any taxes arising from the payments made under this
Agreement, except for taxes on ICTV's net income.
4. WARRANTIES
(a) Each party warrants that it has full legal rights to
enter into this Agreement and to perform its
obligations hereunder.
(b) Company warrants that the Website will perform in
accordance with its documentation in all material
respects.
(c) THE WARRANTIES IN THIS SECTION ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT
NOT LIMITED TO ANY IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. INDEMNITIES.
(a) INDEMNITY BY COMPANY. Company will indemnify ICTV and
each Cable Operator (collectively, "INDEMNIFIED
PARTIES") against and hold them harmless from, and
will defend or settle at Company's own expense, any
action or other proceeding brought against an
Indemnified Party to the extent that it is based on a
claim (i) that Company's Marks infringe any
Intellectual Property Rights of a third party; or
(ii) relating to the Website. Company will pay any
and all costs, damages and expenses (including but
not limited to reasonable attorneys' fees) awarded
against an Indemnified Party in any such action or
proceeding attributable to any such claim.
(b) INDEMNITY BY ICTV. ICTV will indemnify Company
against and hold them harmless from, and will defend
or settle at ICTV's sole expense any action or other
proceeding brought against Company to the extent that
it is based on a claim relating to the ICTV Systems.
ICTV will pay any and all costs, damages and expenses
-4-
(including but not limited to reasonable attorneys'
fees) awarded against Company in any such action or
proceeding attributable to any such claim.
(c) Company will have no obligation under this section as
to any action, proceeding or claim unless: (i)
Company is notified of it promptly; (ii) Company has
sole control of its defense and settlement; and (iii)
the Indemnified Party provides Company with
reasonable assistance in its defense and settlement.
6. CONFIDENTIALITY
(a) Each party: (i) will not disclose to any third party
or use any technical product, business, or
customer-related information disclosed to it by the
other party (collectively "CONFIDENTIAL INFORMATION")
except as expressly permitted in this Agreement; and
(ii) will take all reasonable measures to maintain
the confidentiality of all Confidential Information
of the other party in its possession or control,
which will in no event be less than the measures it
uses to maintain the confidentiality of its own
information of similar importance.
(b) "Confidential Information" will not include
information that: (i) is in or enters the public
domain without breach of this Agreement; (ii) the
receiving party lawfully receives from a third party,
or already has in its possession, without restriction
on disclosure and without breach of a nondisclosure
obligation; or (iii) the receiving party develops
independently.
(c) Each party acknowledges that the Confidential
Information of the other party contains trade
secrets, the disclosure of which would cause
substantial harm to such other party that could not
be remedied by the payment of damages alone.
Accordingly, such other party will be entitled to
seek preliminary and permanent injunctive relief and
other equitable relief for any breach of this
section.
(d) Notwithstanding the terms or conditions of any
agreement between the parties, neither party will be
obligated to disclose or use any customer-related
information in violation of applicable law.
-5-
7. LIMITATIONS OF LIABILITY
(a) EXCEPT FOR LIABILITY UNDER SECTION 5, IN NO EVENT
WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES,
WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND
WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGE, AND EVEN IF SUCH DAMAGES ARE
FORESEEABLE.
(b) ICTV'S TOTAL LIABILITY TO COMPANY UNDER THIS
AGREEMENT WILL BE LIMITED TO THE PAYMENTS MADE UNDER
THIS AGREEMENT BY COMPANY TO ICTV DURING THE PRIOR 12
MONTHS.
8. TERM AND TERMINATION
(a) The term of this Agreement will be for one (1) year
beginning on the Effective Date. This Agreement will
automatically renew for additional one-year periods,
unless either party notifies the other in writing of
its intent not to renew at least sixty (60) days
prior to the expiration.
(b) Either party will have the right to terminate this
Agreement if:
(i) the other party breaches any material term
or condition of this Agreement and fails to
cure such breach within thirty (30) days
after written notice;
(ii) the other party becomes the subject of a
voluntary petition in bankruptcy or any
voluntary proceeding relating to insolvency,
receivership, liquidation, or composition
for the benefit of creditors; or
(iii) the other party becomes the subject of an
involuntary petition in bankruptcy or any
involuntary proceeding relating to
insolvency, receivership, liquidation or
composition for the benefit of creditors, if
such petition is not dismissed within sixty
(60) days of filing.
(c) Within thirty (30) days of the termination of this
Agreement, each party will return to the other party
or (at such other party's request) destroy all copies
of the Confidential Information of such other party
in its possession or control.
-6-
(d) The following Sections will survive the expiration or
earlier termination of this Agreements: 5, 6, 7,
8(c).
9. COMPLIANCE WITH APPLICABLE LAWS.
In performing under this Agreement, each party agrees to
comply with all applicable laws, regulations, ordinances and
statutes, including but not limited to, the export laws and
regulations of the United States and its governmental and
regulatory agencies.
10. EXCUSED PERFORMANCE.
Neither party will be deemed to be in default of any provision
of this Agreement nor be liable for any delay, failure in
performance or interruption of service, resulting directly or
indirectly from acts of God, civil, or military authority,
civil disturbance, military action, war, strikes, other
catastrophes or any other similar cause beyond its reasonable
control. Written notice to the non-affected party of any such
condition will be given by the affected party within ten (10)
days of the event.
11. DELIVERY OF NOTICES AND DELIVERY OF PAYMENTS.
Unless otherwise directed in writing by the parties, all
notices given hereunder and all payments made hereunder will
be sent to the addresses set forth on the first page hereof.
All notices, requests, consents and other communications under
this Agreement will be in writing and will be deemed to have
been delivered on the date personally delivered or on the date
deposited in the United States Postal Service, postage prepaid
by certified mail, return receipt requested, or delivered by
electronic facsimile and confirmed.
12. GENERAL
(a) This Agreement and the rights and obligations
hereunder may not be assigned in whole or in part by
Company without the prior written consent of ICTV,
which will not be unreasonably withheld.
(b) The parties are independent contractors. Nothing in
this Agreement is intended or shall be construed to
constitute either party the partner, employee or
agent of the other.
(c) Any waiver by a party under this Agreement will not
constitute a continuing waiver by such party.
-7-
(d) This Agreement will be governed by the substantive
laws of the State of California. The prevailing party
in any dispute will be entitled to receive its
reasonable fees and costs (including, without
limitation, attorneys' fees) in connection therewith.
(e) This Agreement sets forth the entire agreement
between the parties with respect to the subject
matter hereof, superseding all prior or
contemporaneous representations, understandings and
agreements between the parties with respect to the
subject matter hereof. This Agreement or any
provision hereof may be modified or waived only by a
statement in writing signed by the party against whom
enforcement of same is sought.
IN WITNESS WHEREOF, authorized representatives of the parties have executed this
Agreement as of the Effective Date
ICTV, INC. ENTERTAINMENT BOULEVARD, INC.
BY: /s/ Xxxxxxx Xxxxx BY: /s/ Xxxxxxx Xxxxx
------------------------------- ---------------------------
NAME: Xxxxxxx Xxxxx NAME: Xxxxxxx Xxxxx
----------------------------- -------------------------
TITLE: VP-Content and Bus. Dev. TITLE: CEO
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DATE: 4/21/99 DATE: 4/19/99
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EXHIBIT A
DESCRIPTION OF ICTV SYSTEM AND SERVICES
ICTV has developed a system for delivering interactive multimedia
content including Internet access, to residences over cable television networks
without the need for a personal computer in the home. The platform for the
system consists of hardware and software that is placed at the headend of the
cable operation and a small box placed at the user's home. This platform
provides video switching among the various applications available to the user.
The user accesses the system via cable or telephone lines connected to the small
box and can direct an on-screen pointer with a compact remote control device or
wireless keyboard.
-9-
EXHIBIT B
DESCRIPTION OF COMPANY'S SERVICES AND PRODUCTS
Entertainment Boulevard is in the business of creating entertainment websites
geared toward the presentation of streaming media content. Currently, their
sites include Vidnet, ScreenClips, Pro Sports Net, and Netfomercial.
Entertainment Boulevard's NetFomercial offers online shopping featuring
streaming video infomercials which present products ranging from fitness to auto
to home. When the subscriber clicks on the link, the subscriber will have the
ability to select a product of interest and click on the associated video.
Within this same area, banner ads will be displayed and users will have the
opportunity to purchase Infomercial merchandise online. The videos are available
through RealPlayer G2 and will be seen at 300kps.
The NetFomercial link will appear in ICTV's shopping area and within the area
described as Infomercials.
-10-
ADDENDUM
To the Agreement between ICTV and Entertainment Boulevard
dated April 14, 1999
The purpose of this Addendum is to change the "Effective Date," as defined in
the Agreement. The parties agree that the Effective Date shall be changed to
December 1, 1999.
All other provisions of the Agreement remain as written.
IN WITNESS WHEREOF, authorized representatives of the parties have executed
this Agreement as of the Effective Date
ICTV, INC. ENTERTAINMENT BOULEVARD, INC.
BY: /s/ Xxxxxxx Xxxxx BY: /s/ Xxxxxxx Xxxxx
------------------------------- ---------------------------
NAME: Xxxxxxx Xxxxx NAME: Xxxxxxx Xxxxx
----------------------------- -------------------------
TITLE: VP-Content and Bus. Dev. TITLE: CEO
---------------------------- ------------------------
DATE: 11/23/99 DATE: 11/23/99
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