Exhibit 10.21
LICENSE AGREEMENT
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This Agreement is dated as of December 21, 1998 ("Agreement") and is entered
into by and between American Interactive Media, Inc., 000 Xxxxxxxx, Xxxxx
000, Xxx Xxxx, XX, Attn: Xxxx Xxxxxxx ("AIM") and Entertainment Boulevard,
Inc., 0000 Xxx Xxx Xxxxxx, Xxxxx 000, Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000
("EBLD").
1. CONTENT AND RECIPROCAL LINKS.
AIM distributes comedy content, including video streaming of comedians across
the country showcasing their talent through a web site located at
xxx.xxxxxxxxx.xxx ("ComedyNet Site"). AIM hereby grants to EBLD a
royalty-free, non-exclusive license to distribute such content from the
ComedyNet Site as is mutually agreed by the parties ("Content") on the EBLD
web site, located at xxx.xxxxxxxxxxxxxxxxx.xxx ("EBLD Site").
In consideration for the above, EBLD shall produce, host and serve a
co-branded page or pages within the EBLD Site (hereinafter Collectively
referred to as "Co-Branded Page") for the distribution of the Content. The
Co-Branded Page is defined as a web page or web pages that contain both
PARTIES' logos, trademarks, tradenames, service marks, and/or content as
mutually agreed upon. EBLD shall include on the Co-Branded Page a mutually
agreeable prominent link to the ComedyNet Site. AIM SHALL INCLUDE A MUTUALLY
AGREEABLE PROMINENT LINK TO THE EBLD SITE ON THE COMEDYNET SITE.
AIM agrees that the Content shall not be defamatory or knowingly in breach of
any person's rights, including any intellectual property rights, privacy or
any other rights. EBLD shall have the right not to distribute the Content, or
any portion thereof, at any time if in the reasonable opinion of EBLD any of
the above conditions are breached and until AIM has made the requisite
editorial changes.
EBLD shall have the sole right to sell and shall use best efforts to sell
advertising and sponsorships on the Co-Branded Page and shall split 50/50
with AIM all revenue received by EBLD in connection therewith less any third
party agency fees or commissions actually paid by EBLD in connections with
such advertising and sponsorships. EBLD will account to AIM and pay AIM its
share of revenue within fifteen (15) days after the end of each calendar
month. Along with such payment, EBLD will furnish to AIM a written statement
reflecting the number of advertising impressions on, and number of visitors
to, the Co-Branded Page during the applicable month. Any such statement shall
be deemed accepted by AIM unless (i) AIM notifies EBLD in writing within
eighteen months (18) from the date of AIM's receipt of such statement setting
forth AIM's specific objections thereto and (ii) AIM commences a lawsuit to
contest such statement within two (2) years from the date of AIM's receipt of
such statement. AIM or AIM's designated representative shall have the right,
at EBLD's usual place of business, during business hours and on reasonable
notice to EBLD (but in no event more than once annually), to examine and copy
(provided AIM keeps such copies confidential and uses them solely in
connection with AIM's audit rights hereunder, in any proceeding hereunder, or
in any necessary business disclosures to a third party subject to such their
party's agreement to retain such confidentiality) EBLD's books and records to
confirm the accuracy of any such statements not otherwise deemed accepted. In
the event that such audit reveals a discrepancy in the amounts owed AIM from
what was actually paid, EBLD shall pay AIM the amount of such discrepancy. If
such discrepancy is in excess of five percent (5%) of the amounts actually
paid to AIM, EBLD shall reimburse AIM for the cost of such audit.
EBLD and AIM agree to explore other, non-Internet means of promoting their
Sites and brands.
2. REPRESENTATIONS AND WARRANTIES.
AIM represents and warrants that it owns or controls all right, title and
interest in and to the Content or licenses the rights to the Content and that
it has the authority to enter into this Agreement and to fully perform all of
its obligations hereunder. AIM represents and warrants that the grant of
rights to the Content herein, does not violate the rights of any third
parties and AIM will adhere to applicable Federal,
State and Local law and regulation in the performance of its obligations
hereunder. EBLD represents and warrants that it has the authority to enter
into this Agreement and to fully perform its obligations hereunder, and that
it will adhere to applicable Federal, State and Local law and regulation in
the performance of such obligations.
3. TRADEMARK OWNERSHIP AND LICENSE.
EBLD and AIM will retain all right, title and interest in and to their
respective trademarks, service marks and trade names worldwide, subject to
limited cross-licenses necessary to perform this Agreement. Neither party
shall alter the other party's respective trademarks or other intellectual
property without the other party's express written consent. All references to
the other party's intellectual property shall include the appropriate
trademark, copyright or other legal notices, and shall be subject to the
other party's prior written approval.
4. TERM.
This Agreement shall continue for one (1) year from the last date of
execution of this Agreement. The Term shall be automatically renewed for
additional one (1) year increments unless either party notifies the other at
least thirty (30) days prior to the expiration of the then-current Term that
it does not wish to renew the Term of the Agreement.
5. TERMINATION.
Either party may terminate this Agreement if the other party breaches the
Agreement and the breach remains uncured for thirty (30) days (or, if such
breach is not susceptible to cure within thirty (30) days, the breaching
party must initiate steps to cure the breach within said thirty (30) day
period and continue its efforts to cure such breach), unless such breach is
caused by the alteration of a party's trademark or other intellectual
property, or failure to obtain an approval as required in this Agreement, in
which case the breaching party shall have, upon notice, two (2) business days
in which to cure. Either party may terminate this Agreement if the other
party is the subject of a bankruptcy filing which is not dismissed within
sixty (60) days. Either party may terminate this Agreement on thirty (30)
days advance written notice to the other party. This Agreement shall
terminate with no further obligations between the parties except the
confidentiality obligation set out in Paragraph 6 below and the obligation
contained in the next sentence of this Paragraph 5, if either the ComedyNet
Site or EBLD Site is removed from the Web and/or ceases operation for a
period of more than two (2) consecutive weeks. Upon any termination, EBLD (i)
will account to and pay AIM its share of revenues for all periods prior to
the date of termination within thirty (30) days of termination and (ii) will
promptly return to AIM any materials containing the Content. In addition,
Paragraphs 2, 6, 7, 9 and 10 shall survive termination of this Agreement.
6. CONFIDENTIALITY.
The terms and conditions of this Agreement shall be strictly confidential.
All information about the development of the EBLD Site and the development
and launch of the Co-Branded Page disclosed to AIM, its officers, directors,
employees and/or agents shall be treated as confidential. All information
about the development of the ComedyNet Site and the development and launch of
the Co-Branded Page disclosed to EBLD, its officers, directors, employees
and/or agents shall be treated as confidential. Such confidentiality is of
the essence to this Agreement.
7. INDEMNITY.
Each party will indemnify the other, its parent, subsidiary and affiliated
companies, their employees, officers, directors and agents from third party
claims, losses, causes of action, costs (including reasonable attorney's
fees) arising from the breach of any warranty, representation or covenant in
the Agreement.
8. LIMITATION ON WARRANTY.
Neither party makes any warranty regarding the quality of their goods and
services. Neither party makes any warranty that all errors or failures in
their respective sites will be corrected. The parties expressly disclaim all
warranties of merchantability or fitness for a particular purpose. Beyond the
warranties contained in this paragraph, the parties do not warrant that their
sites are error-free or that operation of their sites will be secure or
uninterrupted.
9. LIMITATION ON LIABILITY.
In no event will either party be liable for any representation or warranty
made to any end user or third party by the other party, or any agent of the
other party. In no even will either party be liable for failure of its
network or support services. These limitations shall survive and apply
notwithstanding the validity of the limited remedies provided for in this
agreement. Except for liability for indemnity, neither party shall have
liability for any damages other than direct damages.
10. DISPUTE RESOLUTION.
Disputes about trademarks, service marks, trade names and confidentiality may
be resolved in court. All other disputes arising out of this Agreement shall
be resolved through mediation and then binding arbitration in accordance
with the rules and procedures of the American Arbitration Association, to
take place in the County of Los Angeles, California, or the County of New
York, New York.
11. GENERAL.
Neither party may assign or otherwise transfer this Agreement with the other
party's prior written consent; provided, however that AIM may assign or
otherwise transfer this Agreement to any parent, subsidiary or affiliated
entity without EBLD's prior written consent. The parties hereto are neither
partners nor joint venturers hereunder, and neither party shall have the power
or authority to bind or obligate the other in any way. This Agreement may not
be modified and none of its terms may be waived, except in writing signed by
both parties. This Agreement shall not be binding until fully executed and
delivered to each of the parties hereto. Neither party's failure or delay to
enforce any rights hereunder shall be considered a waiver of such rights or a
modification of this Agreement. This Agreement shall be governed by and
interpreted in accord with the laws of the State of California applicable to
agreements entered into and to be performed wholly in California. The parties
hereby consent to the exclusive jurisdiction of any State or Federal court
empowered to enforce this Agreement in the State of California, County of Los
Angeles or the State of New York, County of New York, and the parties waive
any objection thereto on the basis of personal jurisdiction or venue. This
Agreement constitutes the entire understanding between the parties with
respect to the subject matter of this Agreement ad supersedes all prior
agreements.
AGREED TO AND ACCEPTED BY:
AMERICAN INTERACTIVE MEDIA, INC. ENTERTAINMENT BOULEVARD, INC.
By: /s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxx
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Title: VP Business Development Title: CEO
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Date: 12/21/98 Date: 12/21/98
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