GLOBAL MUSIC INTERNATIONAL, INC. DBA IMNTV CONTENT LICENSE AGREEMENT
EXHIBIT 10.9
DBA
IMNTV
This
Content License Agreement (“Agreement”) is between Global Music International,
Inc. d/b/a Independent Music Network (IMNTV), located at 00 Xxx Xxxxxxxxxx
Xxxx,
Xxxxxxx, Xxxxxxxxxxx, 00000 (“IMNTV”), and Distributor, as set forth below, and
describes the terms and conditions under which Distributor will distribute
Programming provided by IMNTV as described herein. Distributor’s distribution of
the Programming is subject to the Master Terms of Service (“MTS”) attached
hereto as Exhibit A. All capitalized terms shall have the meaning set forth
on
the MTS. In consideration for the mutual promises and covenants contained
herein, the parties agree as follows:
Distributor’s
authorized signature, is REQUIRED:
A.
Distributor
Information N/A
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Provider
Name:
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MobileVision
Communications Ltd.
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Address:
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100
Xx Xx Zhuang Xx Xx, Xxxxx 000, XxxXxxx0000 Xxxxx, Xxxx Xxxxxxxx,
Xxxxxxx,
Xxxxx
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COUNTRY
PROVINCE:
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P.R.China
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Web
Site
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xxx.xxxxxxxx.xx
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Tax
ID #:
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N/A
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Business
Contact:
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Name:
XxxxXx Xx
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Phone:
x00 000 000 00000
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Email:
xxxxxxxx@xxxxxxxx.xx
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Marketing
Contact:
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Name:
BaoQing (Angel) Song
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Phone:
x00 00000000000
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Email:
xxxxxxxxx@xxxxxxxx.xx
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Technical
Contact:
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Name:
XxxXx Xxxxx
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Phone:
x00 00000000000
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Email:
xxxxxxx@xxxxxxxxxx.xxx.xx
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Billing
contact:
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Name:
RuoXian Qi
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Phone:
x00 00000000000
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Email:
xxxxxxx@xxxxxxxx.xx
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Billing
Address: (if different from above)
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Customer
Service Contact:
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Name:
Liang (Xxxx) Xxxx
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Phone:
x00 000 0000 0000
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Email:
xxxxxxxx@xxxxxxxx.xx
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Notice
Contact:
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Name:
RuoXian Qi
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Phone:
x00 00000000000
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Email:
xxxxxxx@xxxxxxxx.xx
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Notice
Address: (if different from above)
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B.
Term
This
Agreement is effective as of the last date signed below (“Effective Date”). The
initial term of this Agreement will begin on the Effective Date and end twelve
(12) months after the Launch (the “Term”). IMNTV will extend the Agreement on
the same terms and conditions for additional one-year terms, providing
Distributor and IMNTV agree, predicated on satisfactory performance by both
parties
IN
WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives.
DISTRIBUTOR
MOBILEVISION
COMMUNICATIONS LTD.
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By:
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Name
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Xxxxxx
Xxxxx
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Title
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PRESIDENT
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Signature
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/s/
Xxxxxx Xxxxx
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Date
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13/07/05
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D/B/A
INDEPENDENT MUSIC NETWORK (IMNTV)
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By:
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Name
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Xxxxxxx
Xxxxxxxxx
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Title
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PRESIDENT
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Signature
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/s/
Xxxxxxx Xxxxxxxxx
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Date
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13/07/05
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EXHIBIT
A
DBA
IMNTV
MASTER
TERMS OF SERVICE
1.
DEFINITIONS
The
following capitalized terms will have the meanings set forth below:
“Bundles”
means, any version of the Mobile Product that includes IMNTV content bundled
with any other product or service.
“Confidential
Information”
means the confidential or proprietary technical or business information of
a
party, including without limitation (a) proposals or research related to
possible new products or services; (b) financial statements and other financial
information; (c) reporting information; (d) the material terms of this Agreement
and the relationship between the parties; and (e) planned launch dates. All
of
the information will be considered confidential only if it is conspicuously
designated as “Confidential,” or if provided orally, identified at the time of
disclosure as confidential. “Confidential
Information” does 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 without restriction on disclosure and without
breach
of a nondisclosure obligation, or (iii) the receiving party knew prior to
receiving such information from the disclosing party or develops
independently.
“Content”
means generally text, images, video, audio, and other material.
“Fees”
means Subscription Fees that include IMNTV content..
“Internet
Protocol”
means any protocol used to route data on the Internet, or on any portion
of the
Internet, including all versions currently in existence or developed or
implemented in the future.
“Landing
Page”
means the destination web page for a Special Link, created and hosted by
Distributor, from where individuals may begin the Registration Process for
the
Subscription Service or a Bundle, at such individual’s election.
“Launch”
means the date that the Programming is made generally available for purchase
by
consumers under the terms and conditions of the Agreement.
“Programming”means
IMNTV’s Content, as specifically described on Section B (1) of the Agreement. As
used herein, “Programming” also includes any promotional and marketing Content
provided by Provider for IMNTV’s promotional and marketing activities as
described herein.
“Programming
Bundle Fee”
means the fee actually paid by a Subscriber for a Programming Bundle that
includes IMNTV content provided in accordance with this Agreement.
“Distributor
Marks”
means the trademarks, service marks, brands, logos and trade names of
Distributor.
“Distributor
Portal”
means, collectively, the Distributor’s Site and any other web site or property
from where Distributor promotes the Programming.
“Distributor
Site”
means Distributor’s Internet web site intended to promote the availability of
any Distributor Content, including the Programming, via mobile and wireless
networks. Distributor Site is more fully described in Section A of the
Agreement.
“Subscription
Fee”
means the fee actually paid by a Subscriber for the applicable Mobile
Content.
“Subscriber”
means any individual who purchases mobile content programming and: (a) who
actually pays the applicable Subscription Fee; and (b) does not receive a
refund
of such Subscription Fee for any reason within thirty (30) days from the
end of
the payment period for which the Subscription Fee was paid. A Subscriber
remains
a “Subscriber” for the purposes of this Agreement so long as such individual
continues to pay the applicable Subscription Fee.
“Registration
Process”
means the download, payment, installation, and electronic registration process
of the Programming, a Bundle or the applicable Software. “Registration Process”
may include an online registration form
provided,
hosted, and managed by Distributor, and may also, at Distributor’s discretion,
include other methods by which a Subscriber may affirmatively request access
to
the Programming, a Bundle, or the Software.
“IMNTV
Marks”
means the trademarks, service marks, brands, logos and trade names of IMNTV
and/or Global Music International.
“IMNTV
Portal”
means the IMNTV Sites where IMNTV promotes the Programming.
“IMNTV
Sites”
means the Internet web sites owned and operated by IMNTV.
“Special
Link”means
a formatted or “tagged” link that tracks traffic from the Distributor Portal to
the Landing Page.
“Subscribers”
means, collectively, end users who have completed the Registration Process
for
any of the Subscription Products described herein. “Subscribers” includes
“Recurring Subscribers.”
“Subscription
Products”
means, collectively Products and Bundles that include IMNTV
content.
“IMNTV
Mobile Product”
means an IMNTV branded subscription product distributed to mobile and wireless
devices, which includes services, products and Content from one or a variety
of
third parties, and includes any derivative, follow-on, repackaged, or
substantially similar product offered by Distributor that includes IMNTV
Programming.
“Bundle
Fee” means
the fee actually paid by a Subscriber for the Mobile Product Bundle that
includes provider content provided in accordance with this
Agreement.
“IMNTV
Mobile Product Fee”
means the fee actually paid by a Subscriber for the IMNTV Mobile
Product.
“Recurring
Subscriber”
for the purpose of this Agreement so as long as such individual continues
to pay
the applicable Subscription Fee, so long as IMNTV actually receives such
fee.
“Territory”
means China. Other territories are subject to approval by IMNTV.
2.
DISTRIBUTOR
OBLIGATIONS.
2.1
Subscription
Transactions.
Distributor will provide the following services to market, launch and distribute
the Programming using its existing infrastructure as follows:
(a)
Fulfillment.
Each individual who purchases a Subscription must complete the Registration
Process, where such individual will be prompted to provide certain personally
identifiable information including a valid major credit card (e.g. Visa,
MasterCard, Discover, American Express) to receive the Programming. Support
for
additional payment methods and additional credit cards may be developed by
Distributor, with IMNTV’s prior written approval.
(b)
Customer
Support.
Distributor will provide customer support in target Territory in a workmanlike
and professional manner.
2.2
Distribution
Channels.
Distributor
and IMNTV may create, sell and market Bundles that include the IMNTV
Programming. Distributor may offer the Programming and any Bundles through
all
wireless distribution channels in target Territory. To enable all Subscribers
to
have access to the Programming, the Programming may be distributed in whole
or
in part via Internet Protocol in a manner that enables the Programming to
be
received and played back by mobile devices in the target Territory.
2.3
Hosting
Services.
Hosting of on-demand Programming will be provided at no cost to IMNTV in
a
format acceptable to local Territory wireless devices. Distributor will provide
reports of aggregated Subscriber access and usage data concerning the
Programming on a monthly basis, together with reports described in Section
6.5,
below.
2.4
Promotion
of Programming.
Distributor may use the Programming and IMNTV’s Marks to market, advertise and
promote the Programming in the Mobile Software Application(s), the Distributor’s
Portal, and in other on and off-line marketing efforts as follows: (a) promoting
the Programming in directories, listings, and keyword searches; (b) deep
linking
to the Programming; (c) featuring Programming in various areas within the
Distributor’s Software and Distributor’s Portal, (d) communicating to users via
Distributor’s consumer marketing channels such as on-line messages, member
newsletters or email campaigns; (e) featuring excerpts, screenshots of
Programming in marketing collateral and advertisements; (f) featuring the
Programming in product demonstrations relating to Distributor’s
software
or subscription products at trade shows and conferences; (g) creating collateral
for joint promotional efforts between Distributor and third parties; (h)
promoting the Programming in television, radio and print media. IMNTV may
use
Distributor's logos and marks in the marketing of the Product, subject to
pre-approved trademark usage policy and Brand Standards to be provided by
Distributor to IMNTV.
2.5
Distributor
Support and Operational Responsibilities.
Distributor will provide all “middleware” programming to facilitate connection
of the content delivery platform to local Territory wireless networks.
Distributor will perform localization of any software components to make
the
program possible to use in the local Territory. This is to include language
translations or interface design changes. Provider will act as liaison with
local Territory wireless carriers. This will include content review to insure
content meets local broadcast standards and meets any local regulatory
requirements. Distributor also agrees to secure necessary governmental approvals
or permits necessary to operate in the Territory and to secure permission
to
enable distribution of IMNTV’s share of Subscription Fees to IMNTV in the United
States. Distributor is solely responsible for monitoring, performance and
ensuring the availability of the Programming and will notify IMNTV immediately
of planned and unplanned Programming delays or outages.
2.6
Privacy.
Distributor is responsible for complying with all applicable laws, rules
and
regulations relating to its collection and use of personal information from
users of the Distributor Portal. At a minimum, Distributor must adopt, implement
and comply with a Privacy Policy that: (a) is easy to find, read and understand;
(b) is prominently posted at the time that any personally identifiable
information is collected or requested; and (c) clearly states what information
is being collected, what the information will be used for, whether such
information will be provided to third parties, and the choices available
regarding collection, use and distribution of the collected
information.
3.
IMNTV
OBLIGATIONS.
3.1
Grant
of License.
During the Term, for the activities described in this Agreement, IMNTV hereby
grants Distributor non-exclusive rights and licenses necessary within
the Territory to: (a) copy, store digitally, host and stream the Programming;
(b) publicly perform, publicly display, electronically transmit, distribute
and
broadcast the Programming; (c) promote the Programming and use IMNTV Marks
for
Distributor’s promotion of the Programming as activities described in Section
2.4 above; (d) archive the Programming on Distributor’s servers; (e) encode,
copy, and create continuous Programming excerpts of up to sixty (60) seconds
and
transmit, publicly perform, distribute, and redistribute such excerpts to
end
users via the Distributor’s Portal for
marketing purposes only(f)
deep link to the Programming.
3.2
Right
of distribution
N/A
3.3
Removed
N/A
3.4
Programming
Obligations.
IMNTV will create and maintain it’s programming content and will deliver same to
Distributor in a format suitable for the distribution over wireless networks
in
Distributor’s Territory on a regular basis.
3.5
Logo
Trademarks. Distributor may use IMNTV logos and marks in the marketing of
the
Product, subject to pre-approved trademark usage policy and Brand
Standards.
3.6
Dedicated
Personnel.
Throughout the Term, IMNTV shall designate at least one (1) staff member
to
provide Distributor with all reasonably necessary assistance, information
and
support relating to its obligations herein including, but not limited to,
updating and maintaining the Programming.
3.7
Responsibility
for Programming.
Except
as expressly set forth herein, IMNTV
is solely responsible for all costs, activities, obligations and liabilities
associated with: (a) obtaining all rights and licenses necessary for the
authorized use and distribution of the IMNTV Programming as described herein
including, but not limited to, all copyright, trademark rights, rights of
publicity and rights of privacy, and any broadcast, rebroadcast, or
retransmission rights or permissions; and (b) obtaining all necessary
permissions and/or release documentation from all persons associated with
the
distribution of the Programming as described herein, including, without
limitation, all performers.
4.
ADVERTISING
The
IMNTV Programming will not contain any advertising, either integrated or
before
or after each clip, except IMNTV I’Ds and IMNTV commercials for solicitation of
Chinese music videos,without the prior written approval of both
parties.
5.
OWNERSHIP.
5.1
By
IMNTV.
As between Distributor and IMNTV, IMNTV
owns or has the necessary licenses to all copyright, trademark, patent and
other
intellectual property rights in and to, and all other right, title and interest
in and to the Programming, the Trademarks and the IMNTV Portal. Except as
expressly provided herein, IMNTV retains the right to distribute the Programming
in any medium now known or hereafter developed. As between IMNTV and Distributor
(excluding the Programming and other Provider intellectual property), IMNTV
owns
all copyright, trademark, patent and other intellectual property rights therein,
and all other right, title and interest in and to or associated with the
Subscription Products, the IMNTV Sites, the IMNTV Marks, and the System and
Subscriber data.
5.3
Trademarks.
Each
party: (a) will not create a unitary composite xxxx involving a trademark
of the
other party without the prior written approval of such other party; (b) will
display symbols and notices clearly and sufficiently indicating the trademark
status and ownership of the other party's trademarks in accordance with
applicable trademark law and practice; (c) acknowledges that its utilization
of
the other party's trademarks will not create in it, nor will it represent
it
has, any right, title or interest in or to such trademarks other than the
licenses expressly granted herein; (d) agrees not to do anything contesting
or
impairing the trademark rights of the other party; (e) agrees to promptly
notify
the other party of any unauthorized use of the other party's trademarks of
which
it has actual knowledge; and (f) will have the sole right and discretion
to
bring proceedings alleging infringement of its trademarks or unfair competition
related thereto; provided, however, that each party agrees to provide the
other
party, at such other party's expense, with its reasonable cooperation and
assistance with respect to any such infringement proceedings
6.
FEES
AND ROYALTIES
6.1
Mobile
Product Payments.
Subscription fee in Territory is to be determined based on market research
performed by Distributor with pricing to be agreed upon jointly and in writing
Each quarter, Distributor will make royalty payments to IMNTV based on a
Structure as follows:
55%
of subscriber revenue for the subscription based services broadcasting IMNTV
content only, net of telecom percentage provided in accordance with this
Agreement.
(“Programming
Payments”), subject to the following: The parties acknowledge that some mobile
carriers may xxxx end users for a full month in a single billing, and that
others may xxxx for partial months or pro-rate the billing of Recurring
Subscribers. For each full month of Fees received from a Recurring Subscriber,
Distributor will pay IMNTV based on the Rate Structure (the "Full Month
Payment"). To the extent that Distributor receives a partial month's Fee
or
pro-rated Fee from a Recurring Subscriber as a result of a carrier's billing
practices, Distributor will pay IMNTV a proportionate or pro-rated portion
of
such Full Month Payment based on the amount received by Distributor.
6.2
Payments.
All payments hereunder shall be payable to IMNTV in United States Dollars
on a
quarterly basis upon receipt from the wireless carriers in the Territory,
except
as follows:
(a)
First
Payment.
The first payment to IMNTV will be payable upon receipt at the end of the
first
calendar quarter after Launch, and will include any amounts due, pro-rated
based
on the number of days in such period of time; and
(b)
Last
Payment.
The last payment to IMNTV will be payable upon receipt at the end of the
first
full month after the termination or expiration of this Agreement, and will
include any amounts due: for the last month that the Programming is available,
prorated based on the number of days in such final period.
(c)
Other
Exceptions.
All payments hereunder are exclusive of: (i) any trial or promotional periods
during which a Subscriber receives access to the Programming before such
Subscriber’s credit card is charged; and (ii) refunds, charge backs and fees
attributable to contested credit card transactions
(d)
Summary
of Timing.
The parties acknowledge the following that establishes timing of payments:
(1)
Distributor receives a carrier statement saying how much Distributor will
be
paid; (2) 30-45 days later the Carrier pays Distributor; (3) when Distributor
is
paid by a carrier, Distributor makes royalty payments to IMNTV.
(e)
Exchange
Rate.
Payments to IMNTV will be converted from local currency to US Dollars at
the
official exchange rate posted on the day payments are made to IMNTV via wire
transfer provided that currency exchange is approved by the relevant Chinese
currency exchange administrative agency.
6.3
Provider
Payment Location.
Distributor will remit such payments a bank account specifically named by
IMNTV..
6.4
Taxes.
Distributor will collect and remit to the appropriate taxing authority, or
require Subscribers to pay, any sales, use or similar taxes applicable to
any
retail sale or distribution of the Programming. Except for the foregoing,
each
party is solely and separately responsible for its own taxes, user fees,
or
similar levies.
6.5
Reporting.
Distributor will provide IMNTV with a quarterly report or monthly report
if
available, summarizing the data relevant to the payment obligations herein
within five (5) business days from the end of the calendar quarter. The reports
will contain sufficient information to permit Provider to verify payments
hereunder.
7.
TERMINATION
7.1
General
Termination Rights.
Either party may terminate the Agreement at any time in the event of a material
breach by the other party that remains uncured after thirty (30) days written
notice of the breach.
7.2
Termination
for Programming Deficiency.
Distributor reserves the right to issue a warning immediately to Subscribers,
to
temporarily or indefinitely suspend the availability of the Programming,
or to
terminate this Agreement (the “Remedies”) if IMNTV breaches this Agreement. In
the event that Distributor exercises any of its rights set forth in this
Section
7.2, Distributor will notify IMNTV of the Programming Deficiency, Distributor’s
elected Remedy, and the available cure options, and will provide IMNTV with
a
reasonable period of time in which IMNTV may cure the Programming Deficiency
(the “Cure Period”). During
the Cure Period, if commercially reasonable, the Distributor may help IMNTV
cure
the Programming Deficiency, but is under no affirmative obligation to do
so.
If
IMNTV fails to cure the Programming Deficiency within the Cure Period,
Distributor may terminate this Agreement immediately upon written notice.
In the
event of a suspension or termination under this Section 7.2,
Distributor will notify Subscribers that the Programming is no longer available.
Distributor will be solely liable for any refunds pertaining to the Programming
that are issued to Subscribers as a result of termination under this Section
7.2.
7.3
Termination
for Bankruptcy/Insolvency.
Either party may terminate this Agreement immediately following written notice
to the other party if the other party: (a) ceases to do business in the normal
course; (b) becomes or is declared insolvent or bankrupt; (c) is the subject
of
any proceeding related to its liquidation or insolvency (whether voluntary
or
involuntary) which is not dismissed within ninety (90) calendar days; or
(d)
makes an assignment for the benefit of creditors.
7.4
Effect
of Termination.
Except as set forth in Section 7.3 above, upon termination or expiration
of this
Agreement: (a) the licenses granted to Distributor will immediately terminate;
and (b) all fees due to IMNTV will be paid to IMNTV pursuant to Section 6.3
of
this Agreement. In the event that Distributor terminates this Agreement pursuant
to either Section 7.2 or 7.3 above, Distributor will notify Subscribers that
the
Programming is no longer available.
Sections
5, 6.3, 6.6, 7.2, 7.4, 8, and 9 of this MTS will survive the expiration or
termination of the Agreement for any reason.
8.
WARRANTIES
AND INDEMNIFICATION
8.1
Provider
Warranty and Indemnification.
IMNTV represents and warrants to Distributor that: (i) IMNTV
is an
entity duly organized and validly existing under the laws of its state of
organization; (ii) IMNTV has the power and authority to enter into this
Agreement and to perform fully its obligations under this Agreement; (iii)
IMNTV
is under no contractual or other legal obligation which could reasonably
be
expected to interfere in any way with its prompt and complete performance
under
this Agreement; and (iv) the person executing this Agreement on behalf of
IMNTV
has been duly authorized to do so and such execution is binding upon
IMNTV.
IMNTV
will
defend, indemnify, and hold Distributor harmless from and against any and
all
liabilities, claims, losses, costs, damages and expenses (including reasonable
attorneys' fees and court costs) (collectively, "Claims")
relating to or arising out of:
(a) IMNTV's breach of this Agreement; (b) the Content of the Programming
(e.g.,
if such Claim alleges copyright or trademark infringement or infringement
of any
other proprietary right) as furnished by IMNTV under this Agreement (excluding
any Claim to the extent based on any alteration of or insertion in any IMNTV
content by Distributor that is not specifically authorized by IMNTV in writing),
IMNTV Marks or IMNTV Site; (c) any IMNTV online subscription service, the
Programming with the Mobile Subscription Products, or IMNTV’s acts or omissions
with
respect
thereto (including the marketing of the foregoing by IMNTV and excluding
any
Claim to the extent based on any alteration of or insertion in any Programming
by Distributor); (d) violation by IMNTV of any contractual obligation, including
payments or royalties, that IMNTV has to any third party; (e) a claim that
the
Programming as provided by IMNTV does not comply with any federal, state
and
local laws and regulations that are applicable to Distributor’s transmission or
use of Programming as permitted this Agreement; or (f) IMNTV not having
obtained all necessary consents, licenses, permissions
and releases necessary to grant Distributor the rights IMNTV grants to
Distributor hereunder.
8.2 Distributor
Warranty and Indemnification.
Distributor
represents and warrants to IMNTV that: (i) Distributor is an entity
duly
organized and validly existing under the laws of its country of organization;
(ii) Distributor has the power and authority to enter into this Agreement
and to
perform fully its obligations under this Agreement; (iii) Distributor is
under
no contractual or other legal obligation which could reasonably be expected
to
interfere in any way with its prompt and complete performance under this
Agreement; and (iv) the person executing this Agreement on behalf of Distributor
has been duly authorized to do so and such execution is binding upon
Distributor. Distributor will defend, indemnify, and hold IMNTV harmless
from
and against any and all Claims relating to or arising out of: (a) the marketing
by Distributor of the Programming (excluding Claims to the extent based on
Programming or other content provided by or approved by IMNTV), or any
Subscription Product which includes any Programming, (b) any Claim by any
Subscriber concerning Distributor’s operation and maintenance of the
Subscription Products (except for content Claims described in Section 9.1,
Claims concerning the transmission of Subscriber Information to IMNTV, or
the
use of Subscriber Information by IMNTV or by any third party to whom IMNTV
has
disclosed such information); (c) Distributor's alternation of, or insertion
of
material (including commercial advertisements) in, any Programming, except
as
explicitly authorized in each case in writing by IMNTV; and (d) any infringement
of the Subscription Products on the rights of others (excluding any Claim
to the
extend based on any Programming).
8.3
Conditions
of Indemnification.
A party’s obligation to indemnify the other party is expressly conditioned on
the indemnified party: (a) giving written notice of the claim promptly to
the
indemnifying party; (b) giving the indemnifying party control of the defense
and
settlement of the claim utilizing, if necessary, legal counsel to be selected
by
the indemnifying party upon reasonable approval of the other party; (c)
providing to the indemnifying party all available information and assistance
(at
the indemnifying party’s expense); and (d) not compromising or settling such
claim, without the other party’s prior written consent which may not be
unreasonably withheld.
8.4
Disclaimer
of Warranties.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTIES
OR
REPRESENTATIONS RELATING TO THE SUBSCRIPTION PRODUCTS, OR THE LIKELIHOOD
OF
SUCCESS OF THE PROGRAMMING, THE MOBILE NTENT PRODUCT, OR ANY BUNDLE.
TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IMNTV FURTHER DISCLAIMS ALL
WARRANTIES IN THE SUBSCRIPTION PRODUCTS, INCLUDING WITHOUT LIMITATION ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AND
NONINFRINGEMENT.
8.5
Limitation
of Liability.
NO PARTY WILL BE LIABLE TO THE OTHER PARTY IN TORT, CONTRACT OR UNDER ANY
OTHER
LEGAL THEORY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL
LOSS OR DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF APPRISED OF THE
LIKELIHOOD OF SUCH DAMAGES OCCURRING. IN NO EVENT WILL IMNTV’S LIABILITY TO
DISTRIBUTOR UNDER THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY DUE TO IMNTV
HEREIN.
9.
GENERAL
9.1
Notices
and Contact Information.
All notices and demands under this Agreement will be in writing and will
be
delivered by personal service, express courier, or United States mail, to
the
following addresses:
|
If
to IMNTV:
|
Independent
Music Network
00
Xxx Xxxxxxxxxx Xxxx
Xxxxxxx,
XX 00000
XXX
Attention:
General Counsel
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If
to Provider:
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To
the Notice Contact as set forth in Section A of the
Agreement.
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Either
party may change the addresses set forth above by written notice to the other
party. Notice will be effective on receipt. Any notice or report delivered
in
accordance with this Section will be deemed given on the date
actually
delivered;
provided that any notice or report deemed given or due on a Saturday, Sunday
or
legal holiday will be deemed given or due on the next business day. If any
notice or report is delivered to any party in a manner which does not comply
with this Section 9.1, such notice or report will be deemed delivered on
the
date, if any, such notice or report is actually received by the other
party.
9.2
Non-Assignment.
This
Agreement is binding upon each party's assigns, transferees and successors;
provided that no party may assign or otherwise transfer, by operation of
law or
otherwise, this Agreement in whole or in part, without the other party's
prior
written consent. Notwithstanding the prior sentence, either party may assign
this Agreement in its entirety without the other party's consent to any of
the
following: (i) the assignor's successor in a consolidation or merger, (ii)
the
assignor’s successor in an acquisition of all or substantially all of the
assets, equity or beneficial interests of the assignor, (iii) an entity under
common control with, controlled by or in control of the assignor, or (iv)
a
lender, as an assignment of collateral to secure credit extended to the
assignor. The assignor will give the other party written notice within thirty
(30) days of any assignment described in the immediately preceding sentence.
9.3
Confidentiality.
The parties acknowledge that Confidential Information is valuable and unique
and
that disclosure in breach of this confidentiality provision will result in
irreparable injury to its owner. From the Effective Date and for a period
of two
(2) years from the date of termination or expiration of this Agreement, neither
party will use, disclose, or permit any person to obtain any Confidential
Information of the other party. If either party receives a request from any
third party for the Confidential Information of the other party, or if such
party is directed to disclose any portion of any Confidential Information
of the
other party by operation of law or in connection with a judicial or governmental
proceeding or arbitration, it will immediately notify the other party and
will
assist the other party in seeking a suitable protective order or assurance
of
confidential treatment to preserve the confidentiality of any such Confidential
Information. If either party breaches or threatens to breach the terms of
this
confidentiality provision, the non-breaching party will be entitled to an
injunction prohibiting any such breach. Any such relief will be in addition
to
and not in lieu of any appropriate relief in the way of money
damages.
9.4
Press
Releases and Public Statements.
Neither
party will issue any press releases or make public statements relating to
this
Agreement or the relationship between the parties without the other party’s
review of and written consent to such press release or public
statement.
9.5
Force
Majeure.
No party shall be deemed in default hereunder for any cessation, interruption
or
delay in the performance of its obligations due to causes beyond its reasonable
control, including but not limited to: earthquake, flood, or other natural
disaster, act of God, labor controversy, civil disturbance, war (whether
or not
officially declared) or the inability to obtain sufficient supplies,
transportation, or other essential commodity or service required in the conduct
of its business, or any change in or the adoption of any law, regulation,
judgment or decree (each a “Force Majeure Event”). Each party shall have the
right to terminate this Agreement immediately upon written notice if any
Force
Majeure Event of another party continues for more than ten (10)
days.
9.6
Miscellaneous.
This Agreement and Exhibits A, B, and C constitute the final agreement between
the parties with regard to the subject matter herein, and supersedes and
cancels
all prior negotiations, understandings, correspondence and agreements, oral
and
written, express or implied, between the parties with regard to the subject
matter herein. No waiver, amendment or modification of any provision of this
Agreement will be effective unless it is in a document that expressly refers
to
this Agreement and is signed by both parties. Failure or delay by either
party
in exercising any rights or remedy under this Agreement will not operate
as a
waiver of any such right or remedy. The parties are independent contractors.
Neither party will be deemed to be an employee, agent, partner or legal
representative of the other for any purpose and neither will have any right,
power or authority to create any obligation or responsibility on behalf of
the
other. This
Agreement will be governed by the laws of the State of Florida without regard
to
conflicts of law provisions.
EXHIBIT
B
1.
TECHNICAL
REQUIREMENTS. IMNTV
will comply with the following technical requirements, as applicable:
On
Demand. Provider will provide all on-demand media files encoded in the Format
appropriate for each stream type (e.g., audio, video, animation and other
media
file types as they become supported and as IMNTV may then elect to provide)
to
the Distributor via the File Transfer Protocol (FTP).
2.
LIVE/STREAMING
PROGRAMMING (AS APPLICABLE)
2.1
Preparing
Content.
IMNTV will provide Distributor with the URL for each live or simulated live
stream remotely encoded by IMNTV using the conventions established by both
parties.
2.2
Feed
Delivery.
At IMNTV’s election, IMNTV will deliver live feeds to the Distributor via
methods other than FTP over the Internet, including delivery of physical
media.
(a)
General.
IMNTV shall take the appropriate measures to ensure that all live or simulated
live feeds will be delivered continuously to the Distributor 24 hours/day,
7
days/week, except for scheduled maintenance. If any feed is provided to
Distributor using transmission methods that are proprietary or uncommon,
Provider agrees to provide -at no cost -- the receiver equipment to Distributor
and to allow adequate time for setup and testing of equipment prior to delivery
of live content.
(b)
Encoding.
IMNTV will encode feeds to be delivered to Distributor.
EXHIBIT
C
Programming
Technical Specifications
1.
REPRESENTATION
OF PROGRAMMING
1.1
Programming
Presentation.
The following are requirements for all Programming:
(a)
Each
individual item of Programming will be identified with a Programming
identification code (“Programming ID”)
(b)
Clicking
on any Programming will instigate an "Optimized" presentation as
follows:
(i) When
a Subscriber selects the Programming, the default start-up audio/video sequence
for the presentation will start playing in the playback window of the Mobile
Platform Software (“Playback Window”).
2.
POLICIES
FOR ADVERTISING AND PROMOTION WITHIN SOFTWARE
2.1
The
Programming will have a IMNTV Identification (“IMNTV ID”), which is similar to
on-air network id, which is played each time the Programming is launched.
Distributor may utilize the IMNTV ID in the Distributor’s Portal for promotional
purposes.
(a)
The
IMNTV ID will be no longer than two (2) to five (5) seconds in length, and
may
be audio and Real Flash visual media clip.
(b)
All
IMNTV Ids will be hosted and served by Distributor.
(c)
If
Programming is currently playing, the IMNTV Id cannot interrupt the
stream
(d)
If
any advertisement other than a streaming advertisement is scheduled, the
IMNTV
ID must precede it.
3.
PROGRAMMING
DESIGN GUIDELINES
3.1
The
initial opening of IMNTV ID should be authored to the following
standards:
(a)
For
a 120 W x 96H video space (without scroll bars) subject to review with
Distributor to determine suitability for Distributor’s territory.
3.2
Design
Restrictions. The following requirements serve to ensure a consistent Subscriber
experience across all Programming.
(a)
Distributor
will provide IMNTV with page size and load time goals for the Programming.
(b)
Bullet
points describing the Programming
(c)
Descriptions
of the Programming that correspond with each bullet point and elaborate more
on
the bullet point
(d)
Link
to the Provider’s Privacy Policy
(e)
Link
to the Provider’s Terms of Use
(f)
Information
for Customer Service and/or Technical Support to use while servicing
Subscribers
EXHIBIT
D
Distribution
of the Provider’s Content through China Unicom Tianjin
Branch
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1.
Service
Offering
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a.
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MobileVision
is an authorized and fully licensed Service Provider (SP) partner
who
provides the programming and supports the underlying technical
operation
of the streaming service for China Unicom Tianjin.
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b.
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MobileVision
will be making available the music video content from IMNTV on
its WAP
Portal pages and in links contained in its WAP push messages through
China
Unicom Tianjin’s networks.
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2.
Terms
of Service
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a.
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The
China Unicom Tianjin streaming media service is offered as a pilot
commercial program without charge for the period of two to three
months.
IMNTV agrees to participate in this pilot program by providing
the content
to China Unicom Tianjin via MobileVision without charge during
this
period.
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b.
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Starting
on October 1, 0000, Xxxxx Unicom Tianjin intends to charge for
the
streaming service. The revenue sharing and payment terms between
IMNTV and
MobileVision takes effect starting on the same date of commercial
service.
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3.
Pricing
of Service
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a.
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TBD
subject to Carrier’s pricing policy and IMNTV acceptance of
terms
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