Exhibit 10.11.1
REALNETWORKS
PRESETS AGREEMENT
This Agreement is made as of May 10, 1999 ("Effective Date") between
RealNetworks, Inc., a Washington corporation ("RN"); and
________________________________ ("Participant").
This Agreement sets forth the terms and conditions under which
Participant agrees to host live audio content in RealAudio format, and related
streaming media in RN proprietary formats (such as RealAudio, RealVideo, and
others), described in EXHIBIT A (collectively "Content"), for inclusion in RN's
Presets program, which will drive pointers to the Content into some of the most
popular Web sites and "push" applications delivering information directly to PC
desktops, and into proprietary online services and other specialized services
(collectively, "Content Delivery Channels"). RN will include Participant in the
Presets customization list of RN's RealPlayer. RN will point Participant's
Content daily to the Content Delivery Channels, and will include pointers to
allow end users to access the Content, whether the Content originates from
Participant's or RN's RealServer. Accordingly, in consideration for the mutual
promises and covenants contained herein, the parties agree as follows:
1. DESCRIPTION OF PRESET; LICENSE RIGHTS
1.1 PRESETS ON THE REALPLAYER. The RealPlayer is RN's proprietary client
software used by end users to access streaming media through the
Internet. RN has distributed the RealPlayer in several different
languages and in several versions based on geographic location. Current
versions of RN's RealPlayer software includes listings in a pull-down
menu and buttons that link directly to live RealAudio content delivered
via the Internet ("Presets"). End-users of the RealPlayer can customize
the Presets by selecting content providers from the Presets
customization list.
1.2 PARTICIPATION IN THE PRESET PROGRAM. Participant agrees to allow RN to
include Participant in the Presets customization list. Additionally, the
RealPlayer comes with certain pre-installed "default" Presets.
Participant agrees to allow RN to include Participant as a default
Preset for 14 of Participants programs as outlined in Exhibit A. RN will
also allow Participant's other existing presets in the RealPlayer to
remain in the RealPlayer until the release of the RealPlayer currently
named "Redstone." Participant acknowledges that Presets may be
customized by individual end-users and that any Preset, including
default Presets, may be removed or repositioned by end-users. The Preset
program's name and the RealPlayer user interface may change from time to
time, as RealNetworks develops new versions of its client software
1.2.1 As outlined in Exhibit A, Participant's Presets will be a pre-installed
default only in English, Spanish and Japanese RealPlayers downloaded
directly from RN web sites, or sold in non-bundled and non-customized
versions through retail distribution. Participant will substitute 2 of
its 14 presets in both the Japanese and Spanish language RealPlayers
with 2 presets each in the appropriate local language.
1.3 LICENSE.
1.3.1 Participant grants RN a non-exclusive, non-transferable, worldwide,
royalty-free license to: (i) use, reproduce, transmit, publicly
perform, and publicly display the Content in and through the
RealPlayer; and (ii) distribute Content and Content pointers to Content
Delivery Channels and allow Content Delivery Channels to use, transmit,
publicly perform, and publicly display the Content pointers in order to
make Participant's Content accessible to Content Delivery Channels'
end-users.
1.3.2 Participant grants RN a non-exclusive, nontransferable, worldwide,
royalty-free license to use Participant's trademarks and logos in
connection with this Agreement, in the style and manner currently used
by Participant or as communicated to RN. RN shall not be deemed by
anything contained in this Agreement
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to acquire any right, title or interest in any trademark of
Participant, and shall do nothing to prejudice the value or
validity of Participant's rights therein or ownership thereof.
2. PARTICIPANT OBLIGATIONS
2.1 NATURE OF CONTENT. Participant will provide Content for its Preset in
compliance with RN's Technical Specifications, available at xxxx://XXXXX!
BOOKMARK NOT XXXXXXX.xxxxxxx0.xxxx.xxx/xxxxxxxxxxxxxxxx, which RN may
revise from time to time. Without limiting the foregoing, the Content must
be: (i) newsworthy, informational, educational or produced for
entertainment purposes, and not merely promotional in nature; (ii) streamed
in the current version of the applicable RN format, which, as of the
execution of this Agreement, is version G2 in the RealAudio format; and
(iii) streamed live, twenty-four hours per day, seven days per week. The
Content can be hosted by Participant or hosted by RN pursuant to the terms
of RN's standard Real Broadcast Network Services Agreement (if Participant
signs such agreement).
2.2 QUALITY OF SERVICE. The Technical Specifications set forth applicable
quality of service requirements for Participant's Preset. At a minimum,
Participant agrees to insure that at least 400 streams are available to end
users through Participant's Preset regardless whether Participant, RN, or a
third party selected by Participant serves the Content.
2.3 MAINTENANCE OF CONTENT. As between RN and Participant, and except as
expressly provided herein, Participant is solely responsible and liable for
the Content, and RN assumes no responsibility for editing, reviewing,
controlling or any other activities associated with distributing any of the
Content and shall not be liable to any third party in connection with such
activities, whether or not RN undertakes such responsibilities. Participant
shall be solely responsible for all costs and activities associated with
the creation, capture, maintenance, licensing, use and correction of the
Content.
2.4 DOWNLOAD REALPLAYER BUTTON. Participant will prominently display on its Web
site, for the Term, an RN approved standard "Download RealPlayer" button
that will link to the download area of RN's web page. Participant will not
promote any other streaming media player on its website to a degree greater
than Participant promotes RN's streaming media player. If Participant
chooses to provide a link from its Preset to its website, such link must be
to a web page containing only RealPlayer download opportunities, if
Participant includes media player download opportunities on that web page.
2.5 USE OF REALMEDIA FORMATS ON PARTICIPANT'S WEBSITE. Participant agrees that
any content made available in streaming media formats on Participant's
website during the Term will be made available in RealMedia formats (e.g.,
RealAudio, RealVideo, or other RN media formats). Participant will not
promote any other streaming media format on its website to a degree greater
than Participant promotes RN's streaming media formats. If Participant
chooses to provide a link from its Preset to its website, such link must be
to a web page containing only RealMedia formatted content, if Participant
includes streaming media content on that web page.
2.6 REVISION OR REMOVAL OF PARTICIPANT'S PRESET. Participant acknowledges that,
Preset listings can only be changed by RN at the time of a new release or
update of the RealPlayer. Upon termination or expiration of this Agreement,
RN will use commercially reasonable efforts to remove Participant's Preset
in the next release or update of the RealPlayer. Partner also acknowledges
that Preset can be removed at any time by RN if partner does not fulfill
its obligations under this agreement
2.7 AD INVENTORY ON NETRADIO SITE. RN will receive $250,000 worth of free
banner advertising on the Participant's web site with impressions
discounted at 25% of Participant's rate card.
3. RN OBLIGATIONS
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3.1 RN will include Partner in the customization list for Presets during the
Term. Each of Participant's presets will be listed in the top 5 potential
selections for its category. Participant shall have the opportunity to
switch stations within a given category, subject to the timing of player
releases
3.2 RN will promote Participant twice per month on the front page of
xxx.xxxx.xxx.
3.3 All Participant stations, including those not in Presets, will be listed in
the RealGuide stations listing.
3.4 RN will promote Participant in appropriate RN syndication initiatives.
3.5 RN will use commercially reasonable efforts to make the Presets program
generally available to end users on a twenty-four hour basis, seven days per
week, throughout the term of this Agreement. Notwithstanding the foregoing,
Participant acknowledges that the availability and quality of Presets is
dependent on factors outside of RN's control, including other Participants'
quality of service obligations, Internet congestion and other factors. RN shall
not be liable under this Agreement for any failure to make the Presets program,
or any aspect of the Program, available without interruption throughout the term
of this Agreement.
3.6 See exhibit B.
4. ADVERTISING
4.1 INTRA-STREAM ADS. Participant shall retain one hundred percent (100%) of
the revenue from its sale of audio-based, multimedia-based or other
advertising embedded in the Content by Participant ("Intra-Stream Ads"). At
Participant's request, RN will assist Participant in generating
Intra-Stream Ad sales for a standard commission, the terms and conditions
of such advertising sales agreement to be negotiated separately.
Participant shall at all times clearly differentiate advertising from
Content.
4.2 OTHER ADS. Participant agrees that RN may insert pointers to RN's own
media-based advertisements prior to pointers to the Content clips RN
distributes to Content Delivery Channels. RN shall at all times clearly
differentiate advertising from Content. RN will retain one hundred percent
(100%) of the revenue from its sale of any non-Intra-Stream Ads.
5. PAYMENT
5.1 PAYMENT. Participant shall pay RN $140,000 per calendar quarter for
participation in the Presets Program. Such payment is due in quarterly
installments June 15 1999, September 15,1999, December 15,1999, and March
15, 2000. The pricing shall be as follows:
14 Presets (2 per Category in Seven Categories) $40,000 per
preset, $560,000 total
5.2 RIGHT OF FIRST REFUSAL. RN grants Participant the first option to extend
its Presets distribution prior to the expiration of the Term. Should
Participant decline to extend its Presets distribution, RN may offer
Participant's Preset distribution to third parties.
5.3 TAXES. Participant shall pay all taxes, duties and similar charges that
apply to or arise from this Agreement, excluding taxes on RN's income.
Notwithstanding the termination provisions of this Agreement, RN reserves
the right to terminate this Agreement and to remove Participant's Preset
immediately without further notice if payment is not received in accordance
with this Agreement. Invoiced amounts not paid when due shall be subject to
late fees equal to the lower of 1.5% per month or the maximum amount
allowed by applicable law. Termination of this Agreement and/or payment of
such late fees shall not prejudice any other rights or remedies that may be
available to RN with respect to any nonpayment or late payment.
6. PROPRIETARY RIGHTS
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6.1 OWNERSHIP OF CONTENT. As between RN and Participant, Participant remains
the owner of all right, title and interest in and to the Content, and all
copyrights, trademarks, patents and other intellectual property rights
therein.
6.2 RN'S OWNERSHIP. Except as provided in SECTION 6.1, RN shall be the sole
owner of all right, title and interest in and to any content made, created,
developed or used by RN in connection with the Content on RN's Web sites,
the Presets, and all copyrights, trademarks, patents and other intellectual
property rights therein.
7. WARRANTIES/INDEMNIFICATIONS
7.1 PARTICIPANT'S WARRANTY. Participant warrants and represents that: (i) the
Content does not in any way violate any existing law, infringe upon or
misappropriate any copyright, patent, trademark, trade secret, right of
publicity, right of privacy or other proprietary rights of any third party,
either in whole or in part; (ii) the Content contains no matter which, if
published, will be libelous or defamatory; (iii) Participant has the
necessary rights to xxxxx XX the rights granted hereunder; (iv) the Content
complies with all laws applicable to the transmission or use of the Content
as specified in this Agreement for each country in which the Content is
intended to be delivered and (v) it is solely responsible for, and has paid
or will pay, all amounts due any person or entity that has a right to
receive any royalty or other payment as a result of RN's authorized use of
the Content pursuant to this Agreement.
7.2 PARTICIPANT'S INDEMNITY. Participant hereby agrees to indemnify, hold
harmless and defend RN from all claims, damages, costs and expenses,
including reasonable attorneys' fees and litigation expenses, arising out
of or as a result of Participant's breach of the above warranties and
representations or this Agreement. Participant, at its own expense, shall
have the right to employ separate counsel and participate in the defense
thereof.
7.3 RN'S INDEMNITY. RN shall, at its expense, indemnify, hold harmless and
defend Participant from and against all claims, damages, costs and
expenses, including reasonable attorneys' fees and litigation expenses,
arising out of or as a result of RN's breach of this Agreement.
7.4 RN YEAR 2000 WARRANTY. RN represents and warrants that the RealPlayer is
designed to be used prior to, during, and after the calendar year 2000
A.D., and that the RealPlayer will operate during each such time period
without error relating to date data, specifically including any error
relating to, or the product of, date data that represents or references
different centuries or more than one century. RN shall, as soon as
reasonably practicable and at its expense, repair any defect in the
RealPlayer that causes it to operate with error relating to date data.
8. TERM AND TERMINATION
8.1 TERM. Unless sooner terminated as provided herein, this Agreement shall
commence as of the date first written above and expire one year thereafter
(the "Term").
8.2 TERMINATION FOR BREACH. If either party materially breaches any provision
of this Agreement and such breach has not been cured within thirty (30)
days after the other party has given written notice of such breach, the
non-breaching party may terminate this Agreement upon fifteen (15) days'
written notice to the breaching party.
8.3 EFFECT OF TERMINATION. Upon termination or expiration of this Agreement for
any reason, all licenses granted herein shall terminate after removal of
Participant's Preset in accordance with Section 2.6. Sections 5 through 9
shall survive the expiration or termination of this Agreement.
9. MISCELLANEOUS
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9.1 EXCLUSION OF CERTAIN DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PARTY IN TORT, CONTRACT OR UNDER ANY OTHER LEGAL THEORY FOR ANY
CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL LOSS OR DAMAGES ARISING OUT
OF THIS AGREEMENT, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES
OCCURRING.
9.2 NOTICES. Any notice or payment to be made or given to either party shall be
sufficiently made or given on the date of mailing if sent to such party by
facsimile, the receipt of which is confirmed by return facsimile, or if
delivered personally with receipt acknowledged or sent by first class
registered or certified mail, overnight courier, or the equivalent, return
receipt requested, postage prepaid, addressed to such party at the address
first set forth above, or to such other addresses as it shall designate by
written notice given to the other party.
If to RN: RealNetworks, Inc. If to Participant:_______________
Attn: Xxxx X. Xxxx _______________
Fax: (206) 000- 0000 _______________
With a copy to: General Counsel _______________
Fax: (000) 000-0000
9.3 NON-ASSIGNMENT. This Agreement is personal to Participant. Participant may
not sublicense, assign, or otherwise transfer any of its rights in this
Agreement, without the express written consent of RN.
9.4 GENERAL. No waiver, amendment or modification of any provision of this
Agreement shall be effective unless it is in a document that expressly
refers to this Agreement and is signed by both parties. Except as
specifically provided herein, failure or delay by either party in
exercising any rights or remedy under this Agreement shall not operate as a
waiver of any such right or remedy. The parties are separate and
independent legal entities, and the relationship between the parties shall
be that of independent contractors. It is expressly understood that the
parties do not by this Agreement intend to form, nor shall this Agreement
be construed to constitute, a partnership or joint venture between them. If
any provision of this Agreement shall be held by a court of competent
jurisdiction to be illegal, invalid or unenforceable, the legality,
validity and enforceability of the remaining provisions shall not, in any
way, be affected or impaired thereby. This Agreement and the attached
EXHIBIT A, which is incorporated herein by this reference, constitute the
complete and entire agreement between the parties, and supersede and cancel
all prior negotiations, understandings, correspondence and agreements, oral
and written, express or implied, between the parties relating to the
subject matter hereof, and shall be binding only when executed by both
parties hereto. This Agreement shall be governed by the laws of the State
of Washington without regard to conflicts of law provisions, and
Participant consents to the exclusive jurisdiction and venue of the state
and federal courts sitting in the State of Washington. This Agreement shall
not be governed by the United Nations Convention of Contracts for the
International Sale of Goods, the application of which is hereby expressly
excluded.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized representative the day and year first written above.
REALNETWORKS, INC.
--------------------------------
(Participant)
By: By:
---------------------------- ----------------------------
Name: Name:
---------------------------- ----------------------------
Title: Title:
---------------------------- ----------------------------
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EXHIBIT A
DESCRIPTION OF CONTENT
LIST OF PARTICIPANT'S INITIAL PRESET STATIONS AND PLAYER LOCATION
STATION PRESET GENRE PLAYER
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1 The X Alternative U.S., Spanish, Japanese
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2 Vintage Rock Rock U.S., Spanish, Japanese
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3 Adult Rock Rock U.S., Spanish, Japanese
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4 Route 1 Country Country U.S., Spanish, Japanese
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5 60's Country Country U.S., Spanish, Japanese
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6 80's Hits Pop Hits U.S., Spanish, Japanese
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7 Hits! Pop Hits U.S., Spanish, Japanese
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8 Smooth Jazz Jazz U.S., Spanish, Japanese
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9 Cafe Jazz Jazz U.S., Spanish, Japanese
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10 Quiet Classics Classical U.S., Spanish, Japanese
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11 Latin International U.S., Spanish, Japanese
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12 Celtic International U.S., Spanish, Japanese
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13 Techno Alternative U.S.
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14 Symphony Classical U.S.
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15 XXX XXX Spanish
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16 XXX XXX Spanish
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17 XXX XXX Japanese
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18 XXX XXX Japanese
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DESCRIPTION OF CONTENT:
Participant's Content will consist of the following: (insert short
description):
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EXHIBIT B
DESCRIPTION OF CONTENT
Addendum as 3.6:
RN will display NetRadio logo and/or site name as provided by NetRadio as
appropriate to fulfill RN's obligations in section 3 of this agreement.
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