Fill and Sign the Form 20 F Media Corporate Ir Net

12.06 Form: Content License Between a Magazine Publisher and a Web Site Publisher AGREEMENT AGREEMENT (the "Agreement") made as of this __ day of _______, 20 __ (the "Effective Date") by and between XYZ Publishing, a New York corporation, having a principal place of business at 1000 Avenue of the Americas, New York, New York 10019 ("Licensor") and Web Wide Entertainment Company, a New York corporation, having a principal place of business at 100 First Avenue, New York, New York 10012 ("Licensee"). (Licensor and Licensee each referred to herein as a "Party" and collectively as the "Parties").WHEREAS, Licensor is in the business of publishing magazines, and WHEREAS, Licensee desires to license from Licensor, and Licensor desires to license to Licensee, certain Licensor editorial content for use in a Licensee owned and controlled on-line site, located on the World Wide Web portion of the Internet, pursuant to the terms and subject to the conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants set forth herein, Licensee and Licensor hereby agree as follows: 1. Definitions 1.1 Confidential Information The term "Confidential Information" shall mean records or information in the possession or under the control of a Party relating to the technical, marketing, product and/or business affairs or proprietary and trade secret information of that Party in oral, graphic, written, electronic or machine readable form, clearly marked as "confidential," or if disclosed orally, information identified as confidential at the time of disclosure. Confidential Information shall not include information which can be demonstrated: (i) to have been rightfully in the possession of the receiving Party from a source other than the disclosing Party prior to the time of disclosure of said information to the receiving Party ("Time of Disclosure"); (ii) to have been in the public domain prior to the Time of Disclosure; (iii) to have become part of the public domain after the Time of Disclosure by a publication or by any other means except an unauthorized act or omission or breach of this Agreement on the part of the receiving Party, its employees, or agents; or (iv) to have been supplied to the receiving Party after the Time of Disclosure without restriction by a third party who is under no obligation to the disclosing Party to maintain such information in confidence. 1.2 Editorial Schedule The term "Editorial Schedule," shall mean the schedule of categories of Licensor Content to be provided by Licensor hereunder and specified on Schedule A hereto. 1.3 Expenses The term "Expenses" shall mean the actual expenditures made by Licensor for copying, postage, overnight mail, messenger service, meals, and travel (excluding travel not specifically requested by Licensee) necessary to the performance of this Agreement. 1.4 Licensee Web Site The term "Licensee Web Site" shall mean an English-language site operated by Licensee, located on the World Wide Web portion of the Internet at http://www.Licensee.com from which Licensee will offer information, as described in Schedule B hereto. 1.5 Licensee Competitor The term "Licensor Competitor" shall mean any other publisher or provider of information or editorial content related in whole or in part to the content provided by Licensor. 1.6 Licensor Content The term "Licensor Content" shall mean all materials provided by Licensor to Licensee hereunder, as described in the Editorial Schedule, which may include News Updates, Interviews, Predictions, Previews, Prospects, Features, Interactive Quiz, and any other text, graphics, or materials generated in any form or media. Licensor Content shall include any materials derived by Licensee from any materials provided by Licensor, including through the conversion of materials to a format ready for display on the Licensee Web Site. 1.7 Licensor Marks The term "Licensor Marks" shall mean the trademarks, trade names, service marks, or logos owned, controlled, or licensed by Licensor or by any affiliate of Licensor. 1.8 Licensee Web Site The term "Licensee Web Site" shall mean a site which may be established and operated on the World Wide Web portion of the Internet by Licensee. 1.9 Web Launch The term "Launch" shall mean the date on which the Licensee Web Site is generally available on the Internet. 1.10 Modified Licensee Content The term "Modified Licensee Content" shall mean the Licensee Content, as modified by Licensee for use on the Licensee Boxing Web Site. 1.11 Services The term "Services" shall mean the services provided by Licensee to Licensee hereunder. 1.12 Term The term "Term" shall have the meaning set forth in Section 12 hereto. 2. Rights Granted 2.1 License Subject to the terms and conditions herein, and during the Term, Licensor grants to Licensee for the sole purpose of rendering the Licensor Content on the Licensee Web Site, an exclusive license (the "License") for the duration of the Term to: (i) reproduce the Licensor Content in digital form, subject to the restrictions set forth herein, and combine such digitized versions of the Licensor Content with other digitized images, photographs, animation, video, audio, text, software and other content for use on the Licensee Web Site; (ii) reproduce, transmit, communicate, display or distribute the Licensor Content as part of the Licensee Web Site.2.2 Right of Editorial Control Licensee shall have sole editorial control over the implementation and placement of its content on the Licensee Web Site. Before making any Licensor Content publicly available on the Licensee Web Site, Licensee shall give Licensor two (2) business days to review the use and placement of the Licensor Content on the Licensee Web Site. To the extent Licensor notifies Licensee as to any use of the Licensor Content in a way that Licensor reasonably believes will have an adverse effect on the image or reputation of Licensor, Licensee shall change the use of the Licensor Content to address Licensor's concerns. 2.3 Reservation of Rights All other rights with respect to the Licensor Content (and any reproductions or derivative works thereof), whether now existing or which may hereafter come into existence which are not expressly granted to Licensee herein, including but not limited to print publication, electronic publication in all media and in all formats other than those addressed herein, and video, movie and audio rights, are reserved to Licensor. Without limitation to the foregoing, and except as provided herein, Licensor specifically reserves all rights, whether now existing or which hereafter may come into existence, to: make any derivative works of the Licensor Content or derivative works thereof; combine the Licensor Content or derivative works thereof, in whole or in part, with any other materials; transmit or download the Licensor Content or derivative works thereof through electronic, telephonic, optical or any other means; alter or modify in any way the Licensor Content or any derivative works thereof or publicly perform or display in any way the Licensor Content or any derivative works thereof. 3. Services Commencing on a date [__________] days prior to Launch and every [_____(_)] days thereafter, Licensor shall provide Licensee with the Licensor Content as specified on the Editorial Schedule for use on the Licensee Web Site. In addition to providing the Licensor Content, Licensor will designate __ staff writers to provide Licensee up to an aggregate of four (4) hours per month for consultation on developing content for the Licensee Web Site (including development of online games). If Licensee requires fewer than four hours of editorial consulting in any given month, any unused time may not be accrued and carried over. All use of Licensor editorial time exceeding four hours in any month will be billed in accordance with Section 4.3 hereto. 4. Fees and Payment Schedule 4.1 Licensing Fee Licensee shall pay to Licensor an annual licensing fee of [______dollars ($__)], with [___________percent (___%)] payable upon execution of this agreement and a monthly payment of [______ dollars ($______)] payable to Licensor on the first day of each month during the Term. 4.2 Expenses Licensee shall reimburse Licensor for all documented expenses which Licensor incurs in performing its services hereunder. Such reimbursement shall be payable to Licensor within thirty (30) days of Licensee's receipt of an invoice from Licensor for any such expenses. 4.3 Additional Services All use of Licensor editorial time exceeding four hours will be billed at a rate of [______ dollars ($______)] per hour plus reasonable costs and expenses for the Term of this Agreement, and thereafter at Licensor's then-standard rates. 5. Proprietary Rights 5.1 Ownership Licensee acknowledges and agrees that the Licensor Content, the Modified Licensor Content, and all right, title and interest therein, is and shall remain the exclusive property of Licensor and, except as expressly described in this Agreement, Licensee shall have no rights to copy, use, reproduce, display, perform, modify or transfer the Licensor Content, the Modified Licensor Content, and any derivative works thereof. Licensee shall not use the Licensor Content and the Modified Licensor Content for any use other than described herein without the prior written approval of Licensor. 5.2 Assignment of Rights All rights in the Modified Licensor Content, including without limitation images and text viewable on the Internet and any HTML elements relating thereto, are hereby irrevocably assigned to Licensee. All such materials shall belong exclusively to Licensee with Licensee having the right to obtain and to hold in its own name copyrights, registrations or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof. Licensor agrees to give Licensee and any person designated by Licensee any reasonable assistance required to perfect and enforce the rights defined in this Agreement. 5.3 Rights Clearance Licensor shall be responsible for obtaining any permissions necessary to place the Licensor Content and any other materials provided by Licensor for use on the Licensee Web Site. Licensee shall be responsible for obtaining any permissions necessary to place all other content and materials on the Licensee Web Site. 5.4 Copyright Notice Licensee shall cause the following copyright notice (or any other reasonable notices as instructed in writing by Licensor) to be prominently displayed on each page of the Licensee Web site on which Licensor Content is viewed: "Copyright (or [copyright mark]) 20 ___ [relevant year] XYZ Publishing. All Rights Reserved." 5.5 Trademark Usage Licensee shall not use any Licensor Content or Licensor Marks, logos or other identifiers in any manner other than as is expressly provided for in this Agreement, without Licensor's prior written approval. Licensee shall submit to Licensor for prior written approval all proposed uses of the Licensor Marks, and shall not use the Licensor Marks without such approval. Licensor reserves the right to review any approved use of the Licensor Marks and to require changes in such further use, and Licensee agrees to comply with any such requirements. Licensee acknowledges and agrees that: (i) it shall not use the Licensor Marks in a manner likely to diminish the Licensor Marks' commercial value; (ii) it shall not knowingly permit any third party to use the Licensor Marks unless authorized to do so in writing by Licensor; (iii) it shall not knowingly use or permit the use of any mark, name, or image likely to cause confusion with the Licensor Marks; (iv) all goodwill associated with Licensor's use of the Licensor Marks shall inure to Licensor; (v) the Licensor Marks are and shall remain the sole property of Licensor; (vi) nothing in this Agreement shall confer in Licensee any right of ownership in the Licensor Marks, and Licensee shall not make any representation to the effect, or use the Licensor Marks in a manner that suggests that such rights are conferred; and (vii) Licensee shall not now or in the future contest the validity of the Licensor Marks.5.6 Confidential Information Each Party agrees that it shall take reasonable steps to protect the Confidential Information of the other party, using methods at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than a reasonable standard, during the Term of the Agreement and for a period of three (3) years following expiration or termination of this Agreement, and shall prevent the duplication or disclosure of Confidential Information, other than by or to its employees who must have access to the Confidential Information to perform such party's obligations hereunder, provided that each Party shall make such employees aware of the restrictions of this Section 5. 5.7 User Information Licensee agrees that as between Licensee and Licensor, all information received, directly or indirectly, voluntarily or extracted through transactional activity from users of the Licensee Web Site and all lists created or derived therefrom and containing any such information (whether created or derived by Licensee or Licensor) shall be treated and maintained as its Confidential Information under the relevant provisions herein, belonging to Licensee. 6. Content Placement 6.1 Licensor Competitors The Licensor Content shall not be placed on any page of the Licensee Web site containing advertisements for or content of Licensor Competitors. Pages of the Licensee Web site containing Licensor Content shall contain no links to pages containing content of Licensor Competitors or to Web sites published or produced by Licensor Competitors. 6.2 Licensor Logo The Licensor logo shall appear on every page of the Licensee Web Site containing Licensor Content and shall be prominently displayed and linked to the Licensor Web Site or to a page on Licensor Web Site containing Licensor subscription information. Any page of the Licensee Web Site containing Licensor Content must also contain the following copyright notice: "Copyright (or [copyright mark]) 20 ___ [relevant year] XYZ Publishing. All Rights Reserved." 6.3 Links to Links to Licensor Web Site Every page of the Licensee Web Site containing Licensor Content shall also include a link to the Licensor Web site (as herein defined). 7. Advertising and Promotion 7.1 Licensor Advertising on Licensee Site For the Term of this Agreement, Licensee shall provide Licensor with a banner advertisement for Licensor's "______ Magazine" at least twenty-five megabytes (25 MB) in size, rotating on an equivalent basis to any advertisement sold to third parties, and linked to the Licensor Web Site on any page of the Licensee Web Site containing Licensor Content, subject to Licensor's approval. 7.2 Promotion Licensor hereby grants to Licensee the right to advertise and promote the Licensor Content contained on the Licensee Web Site by whatever method and in whatever media Licensee deems appropriate, provided that any such promotion shall include the following notice: "Copyright (or [copyright mark]) 19___[relevant year] XYZ Publishing. All Rights Reserved" as well as the Licensor Mark. 7.3 On-Site Promotion During the Term, Licensee shall provide Licensor with a prominent position on the Licensee Web Site. This prominence will include: (i) on the home page of the Licensee Web Site and any other pages on the Licensee Web Site containing Licensor content, the first position in the list of other sites offering content related to ______; (ii) a separate page (branded with Licensor's logo) within the Licensee Web Site, that is exclusively devoted to Licensor content and is linked to the Licensor Web Site; (iii) on any print, Internet or online advertising in which Licensee includes a list of any of the content providers providing content to the Licensee Web Site, Licensor will be included and given the first position on such listing. 7.4 Advertising Revenues Licensor shall retain twenty five percent (25%) of all revenues or other compensation received from the sale to third-parties of advertising space on pages of the Licensee Web Site containing Licensor content. 8. Warranties and Representations 8.1 Representations and Warranties of Licensor Licensor hereby represents and warrants that:(i) Licensor owns all right, title and interest in the Licensor Content; (ii) Licensor has the power and authority to enter into this Agreement and to perform its obligations hereunder and, upon execution and delivery hereof this Agreement shall constitute the valid and binding obligations of Licensor enforceable in accordance with its terms; (iii) The licensed Licensor Content will not violate any laws, regulations or ordinances, or the rights of any third party and will not give rise to any claim of such violation, including, without limitation, claims of libel, slander, defamation, copyright infringement, infringement of moral rights, trademark infringement, false designation of origin, disparagement, violation of privacy, publicity, identity or other proprietary rights, violation of patent or shop rights, piracy or plagiarism; and (iv) To the extent that Licensor is required to obtain rights, licenses, permissions, clearances, approvals and/or attribution information necessary for Licensee to utilize the Licensor Content, Licensor will do so accurately and completely, and the Licensor Content shall incorporate the necessary credit and/or attribution information. 8.2 Representations and Warranties of Licensee Licensee hereby represents and warrants that:(i) Licensee owns all right, title and interest in the content provided by Licensee for the Licensee Web Site; (ii) Licensee has the power and authority to enter into this Agreement and to perform its obligations hereunder and, upon execution and delivery hereof this Agreement shall constitute the valid and binding obligations of Licensee enforceable in accordance with its terms; (iii) The content contained on the Licensee Web Site will not violate any laws, regulations or ordinances, or the rights of any third party and will not give rise to any claim of such violation, including, without limitation, claims of libel, slander, defamation, copyright infringement, infringement of moral rights, trademark infringement, false designation of origin, disparagement, violation of privacy, publicity, identity or other proprietary rights, violation of patent or shop rights, piracy or plagiarism; and (iv) To the extent that Licensee is required to obtain rights, licenses, permissions, clearances, approvals and/or attribution information necessary for Licensee to utilize any content on the Licensee Web Site, Licensee will do so accurately and completely, and the Licensee We b Site shall incorporate the necessary credit and/or attribution information. 8.3 Disclaimer of Warranties THE WARRANTIES STATED ABOVE ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES MADE BY THE PARTIES. BOTH PARTIES WAIVE ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 8.4 Indemnification Each Party hereto shall indemnify, defend, and hold harmless the other Party, its directors, officers, employees and agents with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that it is based upon a claim that, if true, would constitute a breach of any of the indemnifying Party's representations, warranties, or agreements hereunder. Licensee shall indemnify Licensor and Licensor shall not be liable for any claims arising from any material displayed on the Licensee Web Site which was not contained in the Licensor Content, unless such material was inserted with the express permission of Licensor. In claiming any indemnification hereunder, the Party claiming indemnification (the "Claimant") shal l provide the other Party with written notice of any claim which the Claimant believes falls within the scope of the foregoing sections. The Claimant may, at its own expense, assist in the defense if it so chooses, provided that the other party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the Claimant shall not be final without the Claimant's written consent. 9. Limitation of Liability EXCEPT WITH RESPECT TO LIABILITY ARISING FROM A PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER AND LICENSEE'S PAYMENT OBLIGATIONS HEREUNDER, NEITHER PARTY HERETO SHALL BE LIABLE TO THE OTHER FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. IN ANY EVENT, THE LIABILITY OF LICENSEE HEREUNDER SHALL NOT EXCEED [______ dollars ($____)]. 10. Term and Termination 10.1 Term The Term of this Agreement shall commence on the Effective Date and shall continue for a term of one (1) year, unless this Agreement is earlier terminated in accordance herewith. This Agreement may be renewed for successive one-year terms, upon terms and conditions mutually negotiated and agreed upon by the parties, provided Licensee notifies Licensor of its intent to renew this Agreement by written notice to Licensor at least thirty (30) days prior to expiration of the then current term. 10.2 Termination for Breach Either Party may terminate this Agreement upon thirty (30) days' written notice if the other Party materially breaches any of the terms of this Agreement provided, however, that this Agreement will not terminate if the non-terminating party has cured the breach within the thirty (30) day period. 10.3 Obligations Upon Termination or Expiration Upon termination or expiration of this Agreement, Licensee shall immediately erase any Licensor Content from the Licensee Web Site and immediately deliver to Licensor: (i) all copies of Confidential Information provided to Licensee by Licensor under this Agreement; and (ii) any other material produced hereunder which is owned by Licensor and pay all fees due to Licensor hereunder.10.4 Reversion Upon termination or expiration of this Agreement, all rights granted herein shall automatically revert to Licensor without further notice. 11. General 11.1 Independent Contractor The Parties agree and acknowledge that the relationship of the Parties is in the nature of an independent contractor. This Agreement shall not be deemed to create a partnership or joint venture and neither Party is the other's agent, partner, employee, or representative. Neither Party hereto shall have the right to obligate or bind the other Party in any manner whatsoever, and nothing herein contained shall give or is intended to give any rights of any kind to any third persons. 11.2 Force Majeure Nether Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed, restricted or prevented by reason of any act of God, fire, natural disaster, act of government, strikes or labor disputes, inability to provide raw materials, power or supplies, or any other act or condition beyond the reasonable control of the Parties provided that such party gives the other party written notice thereof promptly and, in any event, within ___ (_) days of discovery thereof and uses its best efforts to cure the delay. In the event that any act of Force Majeure prevents either Party from carrying out its obligations under this Agreement for a period of more than _____ (__) days, the other Party may terminate this Agreement without liability upon _____ (__) days written notice. 11.3 Partial Invalidity Should any provision of this Agreement be held to be void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity. 11.4 No Waiver The failure of either Party to partially or fully exercise any right or the waiver by either Party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement. 11.5 No Assignment Licensee shall not assign any of its rights or obligations under this Agreement to any other entity without Licensor's prior written consent, except that Licensee may assign this Agreement to an entity that controls, or is controlled by, or is under the common control of Licensee, or in connection with any merger, acquisition, or other corporate reorganization of Licensee. All the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of, and shall be enforceable by the respective successors and assigns of the Parties. 11.6 Notices Any notice required or permitted to be sent shall be in writing and shall be sent in a manner requiring a signed receipt such as authenticated facsimile transmission, FedEx or like courier delivery, or if mailed, then mailed by registered or certified mail, return receipt requested. Notice is effective upon receipt. Notices shall be sent to the Parties at the addresses specified in Schedule A hereto: Notices shall be sent to the addresses listed above, unless a Party changes its address by giving written notice to the other party, such notice being effective upon receipt by the party to whom it is addressed. 11.7 Entire Agreement This Agreement, including the Schedules hereto, sets forth the entire agreement between the Parties on this subject and supersedes all prior negotiations, understandings and agreements between the Parties concerning the subject matter. No amendment or modification of this Agreement shall be made except by a writing signed by the Party to be bound thereby or the successor or assign of such Party. 11.8 Severability If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement. 11.9 Governing Law This Agreement shall be governed and interpreted in accordance with the laws of the State of New York without regard to principles of conflict of laws. The Parties agree to submit to the exclusive jurisdiction over all disputes hereunder and venue in the federal and state courts in the State of New York located in New York County. 11.10 Headings The section headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretations of this Agreement. 11.11 Counterparts This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the date first above written. XYZ PUBLISHING WEB WIDE ENTERTAINMENT COMPANY By: ___________________ By: ___________________________ Print Name: ____________ Print Name: ___________________ Title: ___________________ Title: ________________________ Date: ___________________ Date: _________________________