LICENSE AGREEMENT
THIS AGREEMENT made and entered into this 4th day of March, 1999,
between SRN Broadcasting & Marketing, Inc. (An Illinois corporation), 000 X.
Xxxxxxxx Xx. Xxxxx X, Xxxx Xxxxx, XX 00000; its sublicensees, designees,
successors and permitted assigns (Hereinafter individually and collectively
referred to as "Licensor") of the first part
and
ENTERTAINMENT BOULEVARD, INC., 0000 Xxx Xxx Xxxxxx, Xxxxx 000, Xxxxxx
Xxx Xxx, XX 00000 XXX, its sublicensees, designees, successors and permitted
assigns (hereinafter individually and collectively referred to as
"Licensee"), of the second part
WHEREAS, Licensor is actually engaged in the production of radio
broadcasts; and
WHEREAS, Licensee agrees in accordance with the terms hereof, to provide
design, marketing and on-line service for such Programming/Content in the
Licensed Territory, as the same shall be hereinafter defined.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and subject always to the terms and provisions hereinafter
set forth, the parties hereto agree as follows:
1. Licensor hereby exclusively licenses to Licensee the exclusive
license to use the following Programming/Content in and for the Licensed
Territory:
a) The Programming/Content listed on Exhibit "A" attached
hereto and incorporated herein by this reference embodying that
Programming/Content entitled "Bears -- Packers Showdown" and any other
permutations it may take on (hereinafter referred to as the "First Content").
This Programming/Content will be available from the Entertainment Boulevard
"Pro Sports Net" front page, and/or any other mutually agreed upon location
on the Licensee's Internet domain.
2. The rights herein granted by Licensor to Licensee are the
following for the Licensed Territory during the Term hereof:
a) The Term of this License Agreement shall commence March 1,
1999, and expire on the date one (1) year from the date of Delivery to
Licensee of all Content for which Licensee exercises its option, pursuant to
Xxxxxxxxx 0.x)0) hereof (hereinafter, individually and collectively referred
to as "the Term").
1) "Delivery" or words of similar connotation - shall
mean delivery to Licensee by Licensor, for the purpose of distribution via
the Internet, of: a digitally converted version of the content listed on
Exhibit "A" via FTP, T1, ISDN or satellite. Licensee may carry the radio show
live. If content is not delivered via FTP, T1, ISDN or satellite, the cost of
the DAT tape and the delivery of the DAT tape to Entertainment Boulevard
shall be at Entertainment Boulevard's sole expense. These tapes are to be
technically satisfactory to Licensee and shall be commercial free. Licensor
shall also mean delivery to Licensee of all consents, approvals, copyright
information, credits corresponding to these master tapes, all at Licensor's
sole cost and expense.
2) Options: Licensor further grants to Licensee
one (1) option to acquire the exclusive license for the Licensed Territory
for a period of one (1) year. Should Licensor elect to exercise this Option,
Licensor shall notify Licensee in writing within thirty (30) days prior to
the end of the Initial Term. Failure by Licensee to exercise
this Option shall be deemed termination of this Agreement. Should Licensee
exercise its option, all of the same terms and conditions as the Initial Term
hereunder shall apply.
b) The right to use the name of "Bears -- Packers Showdown" in
the Licensed Territory, Licensor and any other person rendering services in
connection with the Content only in connection with the marketing of Content.
During the Term, Licensee may refer to SRN Broadcasting as Licensee's
Internet Content Provider, only in the Licensed Territory. Licensor shall
promote Entertainment Boulevard and Pro Sports Net via in-program billboards.
c) The unfettered right to market, promote, exploit, use and
control the said Content or derivatives thereof, the Content produced
therefrom and embodied therein, throughout the Licensed Territory. All such
Content and derivatives, and any and all copyrights therein and other rights
pertaining thereto, are and shall remain the sole and exclusive property of
Licensor. Licensor acknowledges this ownership and undertakes to protect such
ownership at its sole cost and expense. Licensee shall give Licensor prompt
written notice of any apparent or alleged infringement of any of Licensee's
rights hereunder, or of Licensor's ownership rights in and to the Content. In
this regard, Licensee shall have the sole right, but not the obligation to
take all reasonable and practical steps necessary to protect the copyright
and trademark of Content in the Licensed Territory and, if applicable, to
renew and extend such protection. Licensor shall additionally have the sole
and exclusive right, but not the obligation, to take all reasonable legal
steps necessary to protect said interests and to obtain redress and/or
restrain any third party from any unauthorized use of the Content in the
Licensed Territory or in doing of any act which infringes upon any Content.
Licensee shall be able to participate in any such action, PARI PASSU with the
repayment to Licensor of its expenses. Should Licensor receive any
judgment, settlement or action, after the reimbursement therefrom to Licensor
(and Licensee, if applicable) of their respective legal fees and costs
incurred therein, any remaining proceeds shall be divided between the parties
hereto in the following percentages: Licensor; 75%, Licensee; 25%.
Notwithstanding the foregoing, should Licensor fall or refuse to take any of
the foregoing actions, then, in addition to any of the rights which Licensee
shall have hereunder, either at law or in equity, Licensee may (but shall not
be obligated to) take such action in Licensor's and/or Licensee's name, in
which event any recovery from such action undertaken by Licensee shall be the
sole property of Licensee.
d) All rights in and to the Content licensed hereunder which
are not specifically granted to Licensee hereunder, are reserved by Licensor.
3. Both Licensee and Licensor agree not to grant to any other
person, firm or corporation in the Licensed Territory, and rights in the
Content which are contrary to the grant of rights herein.
4. For the purpose of the Agreement, the term "Licensed Territory"
and/or "Territory" shall be defined as The Internet.
5. In consideration for the rights herein granted, and Licensor's
full and faithful performance of all material terms and conditions hereof,
Licensee shall pay to Licensor with respect to all revenues generated a sum
equal to that percent of the gross revenues actually received by or on behalf
of the Content hereunder, less any fixed costs that are approved by Licensor.
For the purposes hereof, the Revenue Split will be as follows: Licensor 50%,
Licensee 50%.
6. Licensor shall have the right, but not the obligation, to
sell Internet-only advertising to be presented in the section of the Pro
Sports Net website which broadcasts the content outlined in Exhibit A. Such
advertising shall consist of any of the following: banner ads, corporate
sponsorships, audio, video, or audio/video ads which are broadcast
exclusively through the web site, or any other promotional text, graphic,
audio clip or combination of these which generates revenue in exchange for
broadcast over the web site. For the purposes hereof,
the Revenue Split for any of the promotions outlined in this Paragraph 6
shall be as follows: Licensor 50%, Licensee 50%. Should Licensor elect to
sell such internet-only advertising, Licensee shall have the right to approve
all pricing schedules for such advertising. Such approval shall not be
unduly withheld, and Licensee shall respond to all requests for such approval
within three (3) business days. Should advertising generated by Licensor
conflict with advertising generated by Licensee, advertising generated by
Licensee shall take priority, but both parties shall make all possible
efforts to prevent such situation from occurring by informing each other of
all advertising campaigns as they occur.
7. Licensor shall provide Licensee with one-minute
advertisements to run in between program segments. These advertisements
shall run until such time that Licensee's commercial inventory has been
filled. Blocks of advertisements in between program segments shall not
exceed three (3) minutes in length. Licensee may provide Licensor with an
on-air commercial to run on SRN shows at no charge, which Licensor may run
when space is available.
8. Licensor has the right to reject any internet-only
advertising, as defined in Paragraph 6, that Licensor deems unsuitable.
Advertisements considered unsuitable shall include, but are not limited to,
those advertisements regarding or soliciting gambling or sex. Permission to
display ads on the site shall not be unreasonably withheld.
9. Payments between parties of revenues due hereunder shall be made
in currency of the United States of America and shall be accompanied by a
detailed statement. Each payment shall be made monthly, within fifteen (15)
days following the end of each month. Such statement shall be forwarded to
the other party, regardless of whether or not any monies are due and owing.
All statements and payments made shall be binding on the receiving party and
shall not be subject to any objection for any reason, unless specific
objection is made in writing stating the basis thereof within eighteen (18)
months after the date of each such statement. No action, claim or proceeding
against in any form shall be maintained with respect to any such statement or
payment unless a written objection notice is made and such action, claim or
proceeding is commenced in a court of competent jurisdiction within two (2)
years after the date of any such statement. Either party has the right, at
its sole cost and expense, to appoint an independent certified public
accountant to audit only those books and records of the other party which
pertain to the revenues generated hereunder and only for the purposes of
verifying accounting statements. Each party will cooperate fully with such
audit, which shall be during ordinary business hours, after at least thirty
(30) days notice at the recipient's regular place of business where the
recipient keeps said books and records and be conducted so as to minimize
disruption to business. All information derived during such audit shall be
kept confidential, as same constitutes trade secrets. Only one audit may be
conducted in any calendar year and only once per statement.
10. In the event that:
Either party shall fail to perform any of the material
obligations required of it hereunder and should the allegedly failing party
fail to cure any such alleged failure within thirty (30) days after receiving
written notice from the other party detailing same, or, if not possible to
cure within such thirty (30) day period, not commence such cure during such
thirty (30) day period and continue do pursue same; the non-failing,
non-bankrupt and/or non-insolvent party shall have the right to terminate
this Agreement forthwith, by written notice to the other party. In the event
of such termination, all executory obligations contained in this Agreement
shall cease. Any monies collected and/or received by a party shall be deemed
to be monies held in trust on behalf of the other party. In the event of
termination of the Agreement pursuant to Paragraphs 11 and 12, the rights
granted to the Licensee hereunder shall cease and terminate and shall, without
notice or process, revest in Licensor, and Licensor shall in no way waive any
royalties due hereunder. However, any such termination by Licensor or
Licensee shall not affect the Sell-Off Period provided for hereunder.
3
11. Each party represents and warrants as follows:
a) That each party has not made and does not contemplate
making an assignment for the benefit of creditors, that no bankruptcy or
other proceedings based upon insolvency are pending or threatened against it
and that there are no impediments, against it and that there are no
impediments, agreements or litigation, actual or threatened, which would
prevent or impair that party from performing its duties hereunder.
b) That Licensee is now and will use its best efforts to
remain, during the Term hereof, an active Internet Content provider within
the Internet industry.
c) Licensor warrants and represents that none of the Content,
nor its exploitation by Licensee will violate or infringe any common or
statutory right of any person or entity.
d) Licensee's acceptance of the Content or the materials
related to the content will not constitute a waiver of any of Licensor's
warranties, representations or agreements hereunder.
e) Each party is free to enter into and perform this Agreement
and each party's warranties and representations shall be true and correct
upon execution hereof, upon Delivery of the Content shall remain in effect
for so long as Licensee has any rights to the Content.
12. Each party hereto agrees to and does hereby indemnify, save and
hold harmless, the other, its permitted assigns, licensees and its directors,
officers, shareholders, agents and employees from any and all liabilities,
claims, demands, loss and damage (including reasonable attorneys' fees and
court costs) arising out of or connected with any claim by a third party
which is inconsistent with any of the warranties, representations, covenants
or agreements made by the indemnitor herein and agrees to reimburse
indemnitee, on demand, for any payment made by indemnitor at any time after
the date hereof with respect to any liability or claim to which the foregoing
indemnity applies.
13. This Agreement is entire and sets forth the entire understanding
and agreement of the parties hereto, in respect of the matters herein
contained. This Agreement may not be altered, modified, canceled or
terminated in any way except upon agreement of the parties hereto in writing,
and all rights and remedies hereunder shall be cumulative and not limited by
specification. All signatures at the foot hereof shall make this a valid,
binding and enforceable Agreement between the parties hereto. In the event
any payments due Licensor are delayed or prohibited by currency restrictions
or other government regulations, Licensor shall be entitled to designate a
local depository in the Licensed Territory into which Licensee, at Licensor's
expenses, shall deposit such monies. In the event of any action, suit or
proceeding hereunder, the prevailing party shall be entitled to recover its
attorneys' fees and costs from the nonprevailing party. This Agreement does
not create any partnership joint venture, agency or employment relationship
between the parties hereto, their relationship being that of independent
contractors. No waiver of any breach, conditions or covenants herein shall
be deemed to be a waiver or consent to any other breach, condition or
covenant hereunder.
14. Any notice to be given under the terms of this Agreement will be
properly given if delivered in person to the addresses first given above, or
if mailed by prepaid postage, registered or certified mail, return receipt
requested or to such other addresses as any party may advise and if such
notice as aforesaid is delivered by mail, it shall be deemed to have been
received at noon on the fourth business day following posting.
Notwithstanding the immediately foregoing, in the event of the occurrence of
a postal strike or disruption of postal service occurring within six (6) days
before or six (6) days after the giving of any notice of as aforesaid,
4
then and in that event such notices shall be delivered in person and the
option of giving notice by prepaid registered mail or certified shall not be
available to any party until the sixth (6th) day following the termination of
any such postal strike or disruption of postal services.
15. This Agreement shall be construed only under the laws of the
State of California and the parties hereto irrevocably submit to the
jurisdiction of the Courts of the State of California, located in Los
Angeles, California. Any proceeding or action or process commenced in said
Courts arising out of any such claim, dispute or disagreement may, among
other methods, be served upon either by delivering or mailing same, via
registered or certified mail, addressed to that party at the address as set
out above and any such delivery or mail service shall be deemed to have the
same force and effect as personal service within the State of California. If
any part of this Agreement shall be invalid or unenforceable, it shall not
affect the validity of the balance of this Agreement.
16. This Agreement and the execution thereof shall inure to the
benefit of and be binding upon all of the parties hereto, and their
respective heirs, executors, administrator, successors and assigns, this
Agreement to be executed by their duly authorized officers on the day and
date first above written. Notwithstanding anything to the contrary
foregoing, either party shall have the right to assign this Agreement, in its
good faith business judgment, so long as the assigning party agrees to remain
primarily liable for its obligations hereunder to the non-assigning party and
further so long as any such assignee agrees in writing to be bound by the
terms and conditions of this Agreement.
17. Neither party shall be in breach or default hereunder if its
performance becomes impossible, impracticable or is hampered by reason of any
act of God, war, fire, earthquake, labor controversy, sickness, accident,
civil commotion, epidemic, act of Government, its agencies or officers,
failure of technical or transportation facilities or any other cause of a
similar or dissimilar nature not reasonably within that party's control or
which that party could not, with reasonable diligence, have avoided
(hereinafter, individually and collectively referred to as a "Force Majeure
Event"). Upon the happening of any such Force Majeure Event, Licensee, in
addition to any other rights or remedies it may have, including the right to
terminate this Agreement, the non-breaching or defaulting party may elect by
notice to the other party to suspend the Term of this Agreement for that
period of time which any such Force Majeure Event continues. In the event of
any such suspension, the Term as applicable to any Content, shall be
automatically extended by adding a period of time equal to the number of days
of such suspension to the end of the applicable Term. In such event,
specific dates, periods and time requirements referred to herein shall be
postponed and extended accordingly. During any such suspension, all
agreements, covenants, and obligations of each party hereunder shall continue
in full force and effect. Notwithstanding anything to the contrary
foregoing, should any such Force Majeure Event continue for a consecutive
period of time equivalent to Two Hundred Seventy (270) days, then, in such
event, either party shall have the right to terminate this Agreement by
notice to the other party. However, in the event of any such termination,
Licensee shall still be entitled to a thirty (30) day shut-down period
hereunder, once the Force Majeure Event has ceased.
5
The number of pages preceding this page is five (5).
IN WITNESS WHEREOF, the parties hereto have hereunto set their hand and
seals on the day and date first above written.
SRN BROADCASTING AND MARKETING, INC.
By: /s/Xxxxx X. Xxxxx Dated: 3/4/99
------------------------------- ------------------------------
Xxxxx X. Xxxxx, VP
ENTERTAINMENT BOULEVARD, INC.
By: /s/Xxxxxxx Xxxxx Dated: 3-4-99
------------------------------- ------------------------------
Xxxxxxx Xxxxx, CEO
6
Exhibit "A"
One hour per week program of "Bears-Packers Showdown."
7
