Fill and Sign the Form Sb 2 Entertainment Boulevard Inc Secreport

-1- 10.29 Form: Content Provider Oriented Webcasting and Radio Broadcast Agreement WEBCASTING AND RADIO BROADCAST AGREEMENT (the "Agreement") made as of this [___] [execution date to be inserted] day of __, 20__ (the "Effective Date") by and between MegaPubCo, having a principal place of business at [________________________] ("LICENSOR") and Licensee Broadcasting Inc., having a principal place of business at [________________________] ("Licensee") (MegaPubCo and Licensee each referred to herein as a "Party" and collectively as the "Parties"). WHEREAS, LICENSOR is a leading publisher of magazines and Web sites including, among others, a weekly magazine entitled Magazine ("Magazine"); WHEREAS, Licensee is the creator, aggregator and distributor of quality audio programming for distribution and presentation on the World Wide Web portion of the Internet and on broadcast radio networks; WHEREAS, Licensee desires to license from LICENSOR, and LICENSOR desires to license to Licensee, certain content (as more fully described below) from one or more LICENSOR publications (including Magazine) for use in a [weekly], co-produced, [audio] program based on and comprised of such content (as further described in Section 4.1 below, the "Program") which Program shall be owned solely and exclusively by LICENSOR and licensed by LICENSOR to Licensee to be Webcasted from the Licensee Web Site and, in LICENSOR's sole discretion, Webcasted from the LICENSOR Web Site and Syndicated on third party Web sites and broadcast radio networks, all in accordance with the terms and 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 Affiliate. The term "Affiliate" shall mean, with respect to any entity, any other entity that directly or indirectly Controls, is Controlled by or is under common Control with such entity. 1.2 Archival Access. The term "Archival Access" shall have the meaning set forth in Section 4.4. 1.3 Licensee Link. The term "Licensee Link" shall have the meaning set forth in Section 9.4. 1.4 Licensee Web Site. The term "Licensee Web Site" shall mean an -2- English-language site owned and operated by Licensee, currently located on the World Wide Web portion of the Internet at www.Licensee.com (and any replacement or successor thereto), from which Licensee will Webcast the Program on a [Time Period] basis in accordance with all terms and conditions of this Agreement. 1.5 Claimant. The term "Claimant" shall have the meaning set forth in Section 11. 1.6 Confidential Information. The term "Confidential Information" shall mean the terms and existence of this Agreement, and 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, or within thirty (30) days of, the time of disclosure to the receiving party ("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; (ii) to have been in the public domain prior to the Time of Disclosure; or (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. 1.7 Content License. The term "Content License" shall have the meaning set forth in Section 2.1. 1.8 Control. The term "Control" (including the terms "Controls" and "Controlled by") means the possession, directly or indirectly, of the power to direct, or cause the direction of, the management or policies of an entity, whether through the ownership of voting securities, by contract or otherwise. 1.9 End User Data. The term "End User Data" shall have the meaning set forth in Section 8.2. 1.10 Excerpt. The term "Excerpt" shall have the meaning set forth in Section 4.6. 1.11 Indemnitees. The term "Indemnitees" shall have the meaning set forth in Section 11. 1.12 Launch. The term "Launch" shall mean the date on which a [Time Period] Program is first publicly available on the Licensee Web Site. 1.13 License. The term "License" shall mean, collectively, the Program License, the Content License, the Modified LICENSOR Content License and the Trademark License. 1.14 LICENSOR Competitor. The term "LICENSOR Competitor" shall mean any publisher, producer or other provider of information or content -3- related, or the same or similar, in whole or in part, to the LICENSOR Content or the information or material generally published in [Magazine or] any of LICENSOR'S other print or online publications, and any Affiliate of such a competitor. 1.15 LICENSOR Content. The term "LICENSOR Content" shall mean all materials provided by or on behalf of LICENSOR to Licensee hereunder, as described in Schedule A, in any form or media. 1.16 LICENSOR Direct Competitors. The term "LICENSOR Direct Competitors" shall mean the entities listed in Schedule C. 1.17 LICENSOR Links. The term "LICENSOR Links" shall have the meaning set forth in Section 9.3. 1.18 LICENSOR Marks. The term "LICENSOR Marks" shall mean the trademarks, trade names, service marks, characters or logos owned, controlled, or licensed by LICENSOR or by any Affiliate of LICENSOR, including without limitation the Title. 1.19 LICENSOR Web Site. The term "LICENSOR Web Site" shall mean any and all Web sites which may be established or operated by or on behalf of LICENSOR. 1.20 [Licensee Program]. The term "[Licensee Program]" shall mean the [weekly] program Webcasted from the Licensee Web Site featuring Licensee's content. 1.21 Listener Data. The term "Listener Data" shall have the meaning set forth in Section 8.3. 1.22 Magazine. The term "Magazine" shall have the meaning set forth in the recitals. 1.23 Modified LICENSOR Content. The term "Modified LICENSOR Content" shall mean any materials or content derived by or on behalf of Licensee from any materials or content provided by LICENSOR, as edited, altered, digitized, encoded, converted, formatted, reformatted, reconfigured, integrated with other content or materials, or otherwise modified by or on behalf of Licensee in accordance with the terms and conditions of this Agreement for use in the Program, but shall not include the complete, final Program in the form in which it is finally approved by LICENSOR for Webcasting. 1.24 Modified LICENSOR Content License. The term "Modified LICENSOR Content License" shall have the meaning set forth in Section 2.6. 1.25 Program; [Time Period] Program. The term "Program" shall have the meaning set forth in the recitals. The Program shall consist of one (1) program each [Time Period] during the Term (each, a "[Time Period] Program"), each such [Time Period] Program to be included in the definition of Program for all purposes hereunder. -4- 1.26 Program Commission. The term "Program Commission" shall have the meaning set forth in Section 6.1. 1.27 Program License. The term "Program License" shall have the meaning set forth in Section 2.2. 1.28 Promotions. The term "Promotions" shall have the meaning set forth in Section 4.6. 1.29 Radio Broadcast. The term "Radio Broadcast" shall mean to broadcast audio programming to listeners over the radio airwaves. Radio Broadcasting must, at all times, be conducted in such manner so that: (a) the Radio Broadcast is in compliance with all current and future governmental regulations, rules and laws and industry standards, rules and guidelines, and (b) the listener will have a high-quality, continuous and otherwise positive listening experience. 1.30 Record Maintenance and Audit Period. The term "Record Maintenance and Audit Period" shall have the meaning set forth in Section 6.5. 1.31 Reports. The term "Reports" shall have the meaning set forth in Section 6.4. 1.32 Syndicate; Syndication; Syndicator. The terms "Syndicate" and "Syndication" shall have the meanings set forth in Section 2.3. The term "Syndicator" shall mean the third party to whom Licensee Syndicates the Program pursuant to the terms and conditions of this Agreement. 1.33 Term. The term "Term" shall have the meaning set forth in Section 13. 1.34 Title. The term "Title" shall have the meaning set forth in Section 4.1. 1.35 Trademark License. The term "Trademark License" shall have the meaning set forth in Section 2.5. 1.36 Webcast. The term "Webcast" shall mean to transmit and distribute digital audio programming, through the use of "streaming" technology, to end users over the Internet (including, without limitation, online proprietary networks and protocols that are not part of the freely accessible Internet (e.g. America Online) and information networks designed for hand-held devices and "mini" Web browsers (e.g. cell phones, PDA's, network appliances), by way of both narrow band and broadband, as well as wireless, transmission. Webcasting must, at all times, be conducted in such manner so that: (a) the programming cannot be downloaded, stored and/or redistributed by the end user, (b) only passive listening to the programming by the end user is possible, (c) end users cannot alter or manipulate the order, outcome or content of the programming in any manner, (d) the Webcasting is in compliance with all current and future governmental regulations, rules and laws and industry standards, rules or guidelines (including, without limitation, those regarding audio streaming, downloading, transmitting, distribution, encryption and Webcasting), (e) the programming is Webcasted using technology no less current than technology used by Licensee to -5- Webcast programming of a like medium for third parties, and (f) regardless of the manner or media by which the Webcast takes place, the end user will have a high-quality, continuous and otherwise positive experience. 2. Rights Granted 2.1 License of LICENSOR Content. Subject to the terms and conditions herein, LICENSOR grants to Licensee a non-transferable, non-exclusive, revocable, limited license, solely for the duration of the Term, to use the LICENSOR Content solely in its development, production, marketing and publicizing of the Program (the "Content License"). 2.2 License of Program. Subject to the terms and conditions herein, LICENSOR grants to Licensee a non-transferable, non-exclusive, revocable, worldwide, limited license, solely for the duration of the Term, to Webcast and archive (solely as set forth in Section 4.4) the Program on the Licensee Web Site, to promote the Program solely as set forth in Section 4.6 and to Syndicate the Program solely as set forth in Section 2.3 (the "Program License"). 2.3 Program Syndication. Subsequent to the Launch of any [Time Period] Program, and subject to the scope of Program License in Section 2.2, the time limitations in Section 4.4 and LICENSOR's prior written approval in each instance, Licensee shall have the right to syndicate such [Time Period] Program, in the form in which it has been approved by LICENSOR as set forth in Section 2.4, solely in its entirety, to third parties approved by LICENSOR to be Webcasted from such approved third parties' Web sites on the World Wide Web portion of the Internet or to be Radio Broadcasted from such approved third parties' broadcast radio networks (to be referred to herein as "to Syndicate" or "Syndication"). Licensee shall require and ensure that all Syndications of the Program are Webcast solely in accordance with Section 1.36, or Radio Broadcast solely in accordance with Section 1.29, and conform to the standards and performance levels set forth in this Agreement, including without limitation, Licensee's express warranties and Schedule B. 2.4 Right of Editorial Control and Approval. LICENSOR shall have sole editorial and creative control and approval over the Program and each [Time Period] Program, any promotions thereof, and the implementation and inclusion of the LICENSOR Content or the LICENSOR Marks therein. Before making any [Time Period] Program or any LICENSOR Content or LICENSOR Marks publicly availabl`e on the Licensee Web Site or elsewhere, or using any LICENSOR Content or the LICENSOR Marks in promotional materials, Licensee shall provide to LICENSOR at least X business days to review and approve such, Program, [Time Period] Program or any such promotional materials, as the case may be, and the use and inclusion of the LICENSOR Content and the LICENSOR Marks therein. -6- LICENSOR shall issue a written approval of such material or, to the extent LICENSOR notifies Licensee that, in its sole determination, the Program, the [Time Period] Program, the promotional materials, or the use of the LICENSOR Content or the LICENSOR Marks therein, may in any way have an adverse effect on LICENSOR or on the image or reputation of LICENSOR, or is otherwise unacceptable, Licensee shall modify the submitted materials as directed in writing by LICENSOR to address LICENSOR's concerns. The above approval process shall be repeated by the Parties until such time as LICENSOR issues its written approval of the submitted material. Notwithstanding anything to the contrary herein, the Parties shall mutually and in good faith agree upon the design, artwork, music, graphics, animation and choice of host/hostess, if applicable, to be used in the Program or promotional materials. 2.5 Trademark License. Subject to the terms and conditions herein, LICENSOR grants to Licensee a non-exclusive, non-transferable, revocable, worldwide, limited license, solely for the duration of the Term, to use the LICENSOR Marks solely as necessary to perform its obligations and exercise its rights under this Agreement and solely in accordance with any usage or other guidelines provided by LICENSOR from time to time (the "Trademark License"). Licensee shall have the right to sublicense the Trademark License solely as part of the Program, and solely in connection with authorized Syndications or Promotions of the Program hereunder. 2.6 Modified LICENSOR Content License. Subject to the terms and conditions herein, LICENSOR grants to Licensee a non-transferable, non- exclusive, revocable, limited license, solely for the duration of the Term, to use the Modified LICENSOR Content solely for the purpose of creating the Program in accordance with the terms and conditions of this Agreement (the "Modified LICENSOR Content License"). 2.7 Reservation of Rights. All rights with respect to the LICENSOR Content (and any portions, reproductions, derivative works or modifications thereof), the Program, the Modified LICENSOR Content and the LICENSOR Marks, 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 know known or hereafter to become known), and other video, movie and audio rights, are reserved solely and exclusively for LICENSOR. Without limiting 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, the Program or Modified LICENSOR Content or derivative works thereof; combine the LICENSOR Content, the Program or Modified LICENSOR Content or derivative works thereof, in whole or in part, with any other -7- materials; transmit or download the LICENSOR Content, the Program or Modified LICENSOR Content or derivative works thereof through electronic, telephonic, optical or any other means know known or hereafter to become known; alter or modify in any way the LICENSOR Content, the Program or Modified LICENSOR Content or any derivative works thereof or publicly perform or display in any way the LICENSOR Content, the Program or Modified LICENSOR Content or any derivative works thereof. 3. Obligations of LICENSOR 3.1 Provisions of LICENSOR Content. Within X days of the Effective Date, and on a [Time Period] basis thereafter, LICENSOR shall provide Licensee with LICENSOR Content as determined by LICENSOR for use in the Program, in a format to be mutually agreed upon by the Parties. 3.2 Licensee Streaming Services. Notwithstanding anything to the contrary herein, LICENSOR shall in good faith consider using Licensee's streaming services in connection with its Webcasting of the Program by or through third party Web sites, however, Licensor's decision in this regard shall be in Licensor's sole discretion in any instance. 4. Obligations of Licensee 4.1 Production. From its facilities, on a [Time Period] basis, Licensee shall finance, develop and produce each [Time Period] Program, derived solely from the LICENSOR Content provided by LICENSOR for use in such [Time Period] Program, and shall provide all audio engineering, editing and mastering services, streaming media production services, customized audio and video search, navigation and site indexing services, development and design services, hosting talent, program direction, and project management and shall pay any and all costs associated all with such development, production and services. Each [Time Period] Program shall be ten to fifteen minutes in length. Each [Time Period] Program shall cover [Note: Program topics to be discussed by parties.]. The Program shall include only content consisting of LICENSOR Content, which content shall be accurately and thoroughly presented. The Program shall include no third party materials or other content. The Program shall be given a title mutually agreed upon in writing by the Parties in advance of the Launch of the first [Time Period] Program (the "Title"). LICENSOR shall own and retain all rights, title and interest in and to the Title, including without limitation, any and all trademark, trade name and service mark rights and any other intellectual property or other rights inherent therein or appurtenant thereto. 4.2 Broadband and Narrow Band Programs. In the event that Licensee desires to Webcast the Program, or authorize a Syndicator to Webcast the Program, via both broadband and narrow band transmission, in order to -8- provide a positive user experience in each medium, Licensee shall produce one version of the Program that is designed to stream smoothly and continuously, in a high-quality manner, via, and with content appropriate for, narrow band transmission, and one version of the Program that is designed to stream smoothly and continuously, in a high-quality manner, via, and with content appropriate for, broadband transmission. Licensee shall ensure that the broadband version of the Program is only made available, by Licensee or any Syndicator, to end users who are accessing the Program with sufficient bandwidth to provide such end-user with the intended, positive user experience. 4.3 Webcasting from the Licensee Web Site. On a [Time Period] basis, and subject to the review and approval process set forth in Section 2.4 and all other terms and conditions of this Agreement, Licensee shall prominently position and feature the Program as a part of [Licensee Program] (in a manner no less prominent in terms of size, placement, appearance and other features than any other comparable third party programming that Licensee Webcasts from the Licensee Web Site, such positioning subject to LICENSOR'S prior approval in each instance) and Webcast the [Time Period] Program, in its entirety, from the approved position on the Licensee Web Site, all in accordance with the hosting and streaming standards and performance levels set forth in Schedule B, and shall pay any and all costs associated therewith, including, without limitation, costs of web development and design, bandwidth, hosting, backing up, compression, streaming, maintenance and fees payable to third party subcontractors or performers retained by Licensee. Other than in connection with authorized Syndications hereunder, the Licensee Web Site shall directly Webcast the Program solely from the domain name of the Licensee Web Site, and shall not be framed on, nor frame or otherwise superimpose the Program into or from any other Web site. [The URL from which the Program is Webcasted on the Licensee Web Site shall be architectured so that LICENSOR will be credited for the audience and online traffic as measured by companies such as NetRatings, Inc.] 4.4 Archival Access. Licensee shall archive each [Time Period] Program on the Licensee Web Site for [Time Period] after the Launch of such [Time Period] Program, for the sole purposes of having such [Time Period] Program available for approved Syndication or allowing the public to access and listen to the [Time Period] Program, each during such X week period throughout the Term (to be referred to herein as "Archival Access"). Archival Access shall be subject to the same end user restrictions as Webcasting. 4.5 Clearances. Licensee shall be solely responsible for obtaining any and all rights, licenses, permissions, releases, approvals, clearances and credit or attribution information, and paying all royalties, license, reuse or other fees, -9- and any other payments, necessary for either Party, or any Syndicator, to, or arrange to, Webcast, Radio Broadcast or provide Archival Access to the Program, and for Licensee to Syndicate the Program, all as intended by and set forth in this Agreement, and for either Party to perform the activities specified or contemplated herein, including, without limitation, any reproduction, conversion, reformatting, reconfiguring, digitization, encoding, transmission, distribution, public performance, public display, publishing, promotion and other use of any content or materials by either Party in performance of its rights or obligations hereunder. 4.6 Promotion. Licensee shall, at its own expense, use commercially reasonable efforts to market, publicize, advertise and promote the Program and the availability and source thereof throughout the Term, by such methods and in such media as may be mutually determined by the Parties, including, without limitation, in national radio markets ("Promotions"), provided, however, that any and all such Promotions shall be subject to LICENSOR'S prior, written approval in each instance, as set forth in Section 2.4 and Section 7.5. Each audio Promotion shall contain at least two (2) ad spots of at least fifteen (15) seconds each promoting the Program as well as excerpt(s) of the Program (each such excerpt, a "Excerpt"). Each Promotion and each Excerpt shall include the following notice: "Copyright (or (c)) [relevant year] LICENSOR Business Information, a division of Parent Company Inc.". Licensee shall host and facilitate online discussion groups on the Licensee Web Site relating to the Program, in which discussion groups LICENSOR shall have the right and opportunity to participate in a manner mutually agreed upon by the Parties. The Parties shall, within thirty (30) days of the Effective Date, discuss and negotiate in good faith terms and conditions for additional endeavors by the Parties to promote the Program. 4.7 Sponsorship of Program. Subject to LICENSOR'S reasonable approval, Licensee shall solicit and sell advertisements to [insert number of] exclusive sponsors of the Program for insertion by Licensee on the ad insertion areas set forth in Schedule D, and shall cause any Syndicators to do the same on their Web sites or broadcast radio networks, the content, size, prominence, appearance and other features of such advertisements to be mutually agreed to by the Parties. Licensee shall be solely responsible for administering the relationship with such advertisers, Syndicators and other third parties, including the creation of sponsorship packages, management, pricing and execution of advertising/listing/syndication contracts on forms mutually agreed to by the Parties, and billing and collecting all fees due from such advertisers, Syndicators or other third parties, as the case may be, and for remitting to LICENSOR the Program Commission pursuant to Section 6. Licensee will collaborate with LICENSOR with respect to sponsorship pricing on a [quarterly] basis. -10- 4.8 Delivery of Modified LICENSOR Content. Licensee shall furnish to LICENSOR, on a periodic basis throughout the Term and otherwise promptly upon LICENSOR'S request at any time, all Modified LICENSOR Content, in a format determined by LICENSOR. 5. Production Schedule 5.1 Initial Launch. Licensee shall Launch the first [Time Period] Program within X days of the Effective Date. 5.2 Timing of [Time Period] Programs. Licensee must use the LICENSOR Content provided in any given [Time Period] during the Term to create a [Time Period] Program which will be Webcast by Licensee the following [Time Period], and Licensee must require and ensure that Syndicators Webcast or Radio Broadcast [Time Period] Programs within X business days of receiving such [Time Period] Program from Licensee. 6. Fees, Payment, Reports and Audit Rights 6.1 Licensing Fee and Payment. Licensee shall pay to LICENSOR fees in the amounts, and in accordance with the terms, set forth herein: X percent (#%) of the aggregate gross revenue due or credited to Licensee or any of its Affiliates or Syndicators, directly or indirectly derived from: (i) any and all advertising or sponsorship related to or associated with the Program (including without limitation the sponsorship set forth in Schedule D hereto and all advertising or sponsorship related to or associated with Syndications of the Program), with Archival Access to the Program or with any other exploitation of the Program, and (ii) Licensee's Syndication of the Program ((i) and (ii) collectively, the "Program Commission"). Licensee shall pay the Program Commission to LICENSOR on a monthly basis during the Term, within ten (10) days of the end of each calendar month, along with the Report described in Section 6.4. 6.2 E-Commerce Commissions. The Parties shall, within thirty (30) days of the Effective Date, discuss and negotiate in good faith terms for the sharing of revenues or other fees in connection with the LICENSOR Links and the Licensee Link, as such terms are defined in Sections 9.3 and 9.4 respectively. 6.3 Expenses. Each Party shall be responsible for any expenses and costs incurred by such Party in performing its obligations under this Agreement, including, without limitation, all costs and expenses related to any work performed by any employees, consultants, subcontractors or independent contractors engaged by such Party in connection with the production, hosting, marketing, Webcasting, Radio Broadcasting or Syndication of the Program or the fulfillment of any of such Party's other obligations under this Agreement. 6.4 Reports. Along with each Program Commission payment as set forth in -11- Section 6.1, and otherwise upon LICENSOR'S reasonable request, Licensee shall provide to LICENSOR a written report, in conformance with generally accepted accounting practices, of: (a) any and all transactions with third parties for advertising or sponsorship relating (directly or indirectly) to the Program, and any and all revenues associated therewith, (b) any and all transactions relating to the Syndication of the Program, and any and all revenues associated therewith (including, without limitation, all revenue attributable to such Syndication and all advertising and sponsorship revenue derived by Licensee or any Syndicator from the Syndicated Program), (c) Licensee's marketing and promotion of the Program, (d) the Program Commission (in detail, including, without limitation, the sources of all revenues), (e) the monthly traffic on the Licensee Web Site (and each Syndicator's Web site on which the Program is Webcasted), in detail, including, without limitation, the total number of individual listeners to each [Time Period] Program and the total number of Webcasts of each [Time Period] Program on the Licensee Web Site (and on the applicable Syndicator's Web site), (f) the average time duration of end user access to each [Time Period] Program on the Licensee Web Site (and each Syndicator's Web site on which the Program is Webcasted), (g) the total megabytes of Program Webcasted each month from the Licensee Web Site (and each Syndicator's Web site on which the Program is Webcasted), (h) the maximum number, and the average number, of simultaneous Webcasts served each month from the Licensee Web Site (and each Syndicator's Web site from which the Program is Webcasted), (i) a full and complete error log for each month for the Licensee Web Site (and each Syndicator's Web site from which the Program is Webcasted), (j) the dates, times and durations of each Radio Broadcast by each Syndicator of each [Time Period] Program [and the average number of listeners of each Syndicator's broadcast radio network generally, and of each Radio Broadcast by each Syndicator of each [Time Period] Program], (k) all End User Data and Listener Data, and (l) other information reasonably requested from time to time by LICENSOR (collectively, the "Reports"). Notwithstanding anything to the contrary herein, Licensee shall provide LICENSOR with Reports that are at least equal to (in terms of quantity, quality and the manner of presentation) the tracking and reporting information given to any other third party. 6.5 Audit Rights. At all times during the Term and for two (2) years thereafter (the "Record Maintenance and Audit Period"), Licensee shall maintain, at its offices at the address first set forth above, complete, detailed and accurate books and records of all transactions related to the subject matter of this Agreement, including without limitation all information required to be included in Reports as set forth in Section 6.4. No more than two (2) times per year, LICENSOR or its authorized representative shall -12- have the right, at LICENSOR'S expense (subject to the provisions of this Section 6.5), upon at least five (5) business days advance written notice to Licensee, at any time during the Record Maintenance and Audit Period, during Licensee's normal business hours, to audit, examine and copy such books and records of Licensee, and any of Licensee's third party service providers engaged by Licensee to perform its obligations hereunder, necessary to confirm the payments (and calculation, and basis for calculation, thereof) or accuracy and completeness of Reports due to LICENSOR hereunder. All such audits shall be performed at Licensee's or its third party service provider's offices, as applicable, unless otherwise agreed to by the Parties. All such audits shall be conducted in such manner as not to unreasonably interfere with Licensee's normal business activities. In the event any such audit reveals a shortfall in any payment owing to LICENSOR, then Licensee shall immediately pay such shortfall amount to LICENSOR, and , if such shortfall is greater than X percent (#%), shall also immediately pay the costs of the audit. 7. Proprietary Rights 7.1 Ownership of the Program, LICENSOR Content, Modified LICENSOR Content, Promotions, Vignettes and LICENSOR Marks. Licensee acknowledges and agrees that the Program, LICENSOR Content, Modified LICENSOR Content, Promotions, Vignettes and LICENSOR Marks, and all rights, title and interest in or appurtenant to all of the foregoing, is and shall remain the sole and exclusive property of LICENSOR and, except as expressly permitted in this Agreement, Licensee shall have no rights to, and shall not, copy, reproduce, display, sublicense, distribute, perform, Webcast, Radio Broadcast, offer, store, edit, alter, modify, transfer or otherwise use the Program, LICENSOR Content, Modified LICENSOR Content, Promotions, Vignettes or LICENSOR Marks, or any derivative works thereof, without the prior written approval of LICENSOR in each instance. Licensee hereby acknowledges and agrees that the Program, the Title, the Modified LICENSOR Content, the Promotions and the Vignettes shall be "works made for hire" and that, in the event the Program, the Title, the Modified LICENSOR Content, the Promotions and/or the Vignettes are deemed not to be works made for hire, Licensee hereby irrevocably assigns to LICENSOR all rights, title and interest in and to the Program, the Title, the Modified LICENSOR Content, the Promotions and the Vignettes, including, without limitation, images, sound and text accessible on the Internet and any [HTML/XML/PDF/Future or Alternate Design Protocols or Languages] elements relating thereto. All such materials shall belong solely and exclusively to LICENSOR with LICENSOR having the right to obtain and to hold in its own name copyrights, registrations or such other protection as -13- may be appropriate to the subject matter, and any extensions, continuations and renewals thereof. Licensee agrees to provide to LICENSOR and any person designated by LICENSOR, any assistance required to perfect or enforce any such rights. Notwithstanding anything to the contrary in this Section 7.1, to the extent that a Promotion contains copyright-protectable Licensee or third party content in addition to LICENSOR Content, Modified LICENSOR Content, Vignettes, LICENSOR Marks, and/or any derivation of any of the foregoing, Licensee (or its licensors) shall own any copyright in the compilation of the Promotion, while LICENSOR shall retain all rights, title and interest in and to the LICENSOR Content, Modified LICENSOR Content, Vignettes, LICENSOR Marks, and any derivation of any of the foregoing. 7.2 Ownership of the End User Data and Listener Data. The End User Data and Listener Data shall be jointly owned by LICENSOR and Licensee, including all copyrights, trademark rights (other than rights to the LICENSOR Marks or the Title, as set forth herein), trade secret rights, patent rights and other intellectual property and proprietary or other rights inherent therein or appurtenant thereto. 7.3 Credits and Attribution. In all media in which the Program is distributed, Syndicated or promoted, Licensee and LICENSOR shall be attributed equal credit as co-producers of the Program, in a manner determined mutually by the Parties. 7.4 Copyright Notice. Subject to LICENSOR'S prior, written approval, Licensee shall cause the following copyright notice (or any other notices as instructed in writing by LICENSOR) to be prominently displayed on or in association with the Program (including each [Time Period] Program and any Syndication of the Program) whenever it is Webcasted, Archived or otherwise published: "Copyright (or (c)) [relevant year] MegaPubCo, All Rights Reserved." 7.5 Trademark Usage. Licensee shall not use any LICENSOR Marks or other identifiers for any purpose or in any manner other than as expressly provided in this Agreement, without LICENSOR'S prior written approval in each instance. 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 immediately 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 commercial value of any of the LICENSOR Marks; (ii) it shall not permit any third party to use the LICENSOR Marks unless authorized to do so in writing by LICENSOR in each instance or as expressly permitted hereunder; (iii) it shall not use or -14- permit the use of any mark, name, or image likely to cause confusion with the LICENSOR Marks; (iv) all goodwill associated with Licensee's or a Syndicator's use of the LICENSOR Marks shall inure to LICENSOR; (v) the LICENSOR Marks are and shall remain the sole and exclusive property of LICENSOR; and (vi) nothing in this Agreement shall confer in Licensee or any Syndicator any right of ownership in the LICENSOR Marks, and Licensee or any Syndicator shall not make any representation to that effect, or use the LICENSOR Marks in a manner that suggests that such rights are conferred. 8. Confidential Information 8.1 Confidential Information. Each Party agrees that it shall take reasonable steps to protect the Confidential Information of the other Party, using methods at least equivalent to the steps it takes to protect its own most confidential proprietary information, but not less than a reasonable standard, during the Term of the Agreement and for a period of one (1) year 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 and agree to the restrictions of this Section 8. 8.2 User Information. The Parties agree that all information of any kind received or gathered, directly or indirectly, voluntarily or extracted through transactional activity, from or regarding users of the Licensee Web Site and any Syndicator's Web site in connection with or related to the Program, any online discussion groups pertaining to the Program or any other activities set forth herein or contemplated hereby, and all lists created or derived therefrom and containing or using any such information (whether created or derived by Licensee, a Syndicator or Licensee's or a Syndicator's advertisers, sponsors or ad servers) (collectively, "End User Data") shall, as between LICENSOR and Licensee, be owned jointly by LICENSOR and Licensee. Each Party represents and warrants that it shall not violate any applicable national or international statute, rule, regulation or directive or industry standard, guideline or agreement pertaining to the End User Data. 8.3 Listener Information. The Parties agree that all information of any kind received or gathered by or on behalf of Licensee or any Syndicator, directly or indirectly, voluntarily or extracted through transactional activity, from or regarding listeners of any Radio Broadcast in connection with or related to the Program or any other activities set forth herein or contemplated hereby, and all lists created or derived therefrom and containing or using any such information (whether created or derived by Licensee, a Syndicator or Licensee's or a Syndicator's advertisers or sponsors) (collectively, "Listener -15- Data") shall, as between LICENSOR and Licensee, be owned jointly by LICENSOR and Licensee. Each Party represents and warrants that it shall not violate any applicable national or international statute, rule, regulation or directive or industry standard, guideline or agreement pertaining to the Listener Data. 9. LICENSOR'S Competitors; LICENSOR Content Placement; Links 9.1 LICENSOR Competitors. Licensee shall not place, and shall require that Syndicators not place, any advertisements or sponsorships for or content of any LICENSOR Competitor on any page of the Licensee Web Site, or a Syndicator's Web site, from which the Program is Webcasted. Pages of the Licensee Web Site, or any Syndicator's Web site, containing LICENSOR Content shall contain no links to pages containing content of LICENSOR Competitors or to Web sites owned, operated, published or produced by LICENSOR Competitors. Licensee shall not run, and shall require that Syndicators not run, any advertisements for or content of any LICENSOR Competitor in connection or association with any Radio Broadcast of the Program. Licensee shall require that all Syndicators conform to the terms of this Section 9.1. 9.2 LICENSOR Direct Competitors. At no time during the Term shall Licensee enter into or solicit an agreement with any of the LICENSOR Direct Competitors similar to the relationship between the Parties herein or under which Licensee is granted rights similar to those rights granted to Licensee by LICENSOR hereunder. 9.3 LICENSOR Marks and Links. The LICENSOR Marks (as designated by LICENSOR) shall prominently appear on any page of the Licensee Web Site, and any Syndicator's Web site, from which the Program is Webcasted, mentioned, referenced, made available or appears, as well as any other page of the Licensee Web Site mutually agreed upon by the Parties, the size, placement, prominence, content, design and overall appearance of which shall be determined by LICENSOR in LICENSOR'S sole and reasonable discretion, but in no event less prominent in terms of size, placement, appearance and other features than any other comparable third party marks. Each LICENSOR Mark as set forth above shall link to a page(s) on the LICENSOR Web Site of LICENSOR'S designation (the "LICENSOR Links"). 9.4 Licensee Link; Content Partners List. During the Term, LICENSOR shall display a mark of Licensee's, provided by Licensee and agreeable to LICENSOR with respect to size and content, on a mutually agreeable location and placement on the LICENSOR Web Site, which mark shall contain a hyperlink to the front page of the Licensee Web Site (the "Licensee Link"). -16- 10. Warranties and Representations 10.1 Representations and Warranties of LICENSOR. LICENSOR hereby represents and warrants that: (i) LICENSOR owns or is the valid licensee of the LICENSOR Content and LICENSOR Marks; (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; (ii) the LICENSOR Content (in its unmodified form precisely as provided to Licensee and exclusive of any third party material or other content) and LICENSOR Marks will not violate any laws, regulations or ordinances, or the rights of any third party and will not infringe the copyright, trademark, U.S. patent or other proprietary rights of a third party; and (iii) the terms of this Agreement do not conflict with the terms of any other agreements to which LICENSOR is a party. 10.2 Representations and Warranties of Licensee. Licensee hereby represents and warrants that: (i) Licensee owns all right, title and interest in and to the Licensee Web Site and the content provided by Licensee for or on the Licensee Web Site or the Program; (ii) Licensee has the full power and authority to enter into this Agreement and to fully 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 materials and other content contained on the Licensee Web Site (including, without limitation, any online discussion groups), the Program, [Time Period] Program, Licensee's, any Syndicator's or LICENSOR'S use of any of the foregoing, the Webcasts, the Radio Broadcasts, the Promotions and Licensee's activities hereunder, do not and will not violate or infringe or misappropriate any laws, regulations or ordinances, or the rights of any third party, will not be obscene or indecent or otherwise objectionable to a person with reasonable sensibilities 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, trade secret infringement, false designation of origin, disparagement, violation of privacy, publicity, identity or other proprietary rights, violation of patent or shop rights, piracy or plagiarism; (iv) the Licensee Web Site and the Webcasting of the Program will be continuously accessible and fully operational (exclusive of reasonable, scheduled maintenance) and will operate in accordance with standards (including, without limitation, those regarding audio streaming, downloading, transmitting, distribution, encryption and Webcasting) at least as high as the highest standards observed in the industry for similar services, and in no event less than the standards and performance levels set forth in -17- Schedule B, which standards and performance levels shall be met regardless of whether the Webcast is via broadband or narrow band transmission; (v) to the extent that rights, licenses, permissions, clearances, approvals and/or attribution are necessary for the use of any content on the Program, the Promotions or the Licensee Web Site, or for the Webcasting, Radio Broadcasting or Syndication of the Program as set forth in this Agreement, Licensee will satisfy such requirements accurately and completely, and the Licensee Web Site, the Promotions and the Program shall incorporate the necessary credit and/or attribution information; (vi) Licensee shall require that all Syndicators make and agree to at least the representations and warranties set forth in this Section 10.2; and (vii) the terms of this Agreement do not conflict with the terms of any other agreements to which Licensee is a party. 10.3 Disclaimer of Warranties. THE WARRANTIES STATED ABOVE ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES MADE BY THE PARTIES. BOTH PARTIES EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 11. Indemnification Each Party hereto shall indemnify, defend, and hold harmless the other Party, its parent, subsidiaries and affiliates, and their respective directors, officers, employees and agents (collectively, the "Indemnitees") 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, obligations or agreements hereunder. Licensee shall indemnify, defend and hold LICENSOR and its Indemnitees harmless from, and such entities shall not be liable for, any claims arising from or relating to, the Licensee Web Site, the Program, the Webcasts, the Promotions, Licensee's production, distribution, marketing or Syndication thereof, the acts or omissions of the Syndicators in connection with the activities set forth herein or contemplated hereby or any material used by Licensee hereunder or displayed on the Licensee Web Site or Syndicator's Web Sites or Radio Broadcasted by any Syndicator (exclusive of the unmodified LICENSOR Content and LICENSOR Marks). In claiming any indemnification hereunder, the Party claiming indemnification (the "Claimant") shall provide the other Party with written notice of any claim which the Claimant believes falls within the scope of the foregoing sections, provided that a Party's delay in such notification shall not effect the other Party's indemnification obligations or liability except to the extent the indemnifying Party is materially -18- prejudiced as a direct result of such delay. 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. 12. Limitation of Liability EXCEPT WITH RESPECT TO LIABILITY ARISING FROM A PARTY'S INDEMNIFICATION OBLIGATIONS, BREACH OF CONFIDENTIALITY OBLIGATIONS OR LICENSEE'S PAYMENT OBLIGATIONS HEREUNDER, NEITHER PARTY HERETO SHALL BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE 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 NO EVENT SHALL THE CUMULATIVE LIABILITY OF LICENSOR EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE TO LICENSOR DURING THE PERIOD DURING WHICH THE CLAIM ACCRUED. IN NO EVENT SHALL LICENSOR BE LIABLE FOR OR IN CONNECTION WITH ANY INFORMATION, PRODUCTS OR SERVICES OFFERED, SOLD OR DISTRIBUTED BY OR ON BEHALF OF LICENSEE OR ANY SYNDICATOR ON OR THROUGH THE LICENSEE WEB SITE, A SYNDICATOR'S WEB SITE OR OTHERWISE. 13. Term and Termination 13.1 Term. The Term of this Agreement (the "Term") shall commence on the Effective Date and shall continue for a term of X year(s) thereafter, unless renewed or 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 in writing. 13.2 Termination for Breach. Either Party may terminate this Agreement upon X 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 such X day period. 13.3 Termination for Insolvency. Either Party may terminate this Agreement if the other Party makes any assignment for the benefit of creditors or suffers or permits the commencement of any form of insolvency or receivership proceeding, or has any petition under bankruptcy law filed against it, which petition is not dismissed within X days of such filing, or has a trustee or receiver appointed for its business or assets or any portion thereof. -19- 13.4 Termination for Failure to Remain Competitive. LICENSOR may terminate this Agreement, upon X days written notice to Licensee, in the event that Licensee, the Program or Licensee's Webcasting or Syndication thereof does not remain competitive in the industry. 13.5 Obligations Upon Termination or Expiration. Upon termination or expiration of this Agreement for any reason, the License and all other rights and licenses granted hereunder shall immediately terminate and Licensee shall, and shall ensure that the Syndicators immediately: (a) permanently cease, and cause any and all third parties, including but not limited to Syndicators, to immediately and permanently cease, all development, production, advertising, promotion, marketing, publicizing, publishing, distribution, transmission, archiving, Syndication, Webcasting, Radio Broadcasting and other use or exploitation of the Program, the LICENSOR Content, the Modified LICENSOR Content, the LICENSOR Marks, the Promotions or the Vignettes; (b) remove and erase any and all Programs, LICENSOR Content, Promotions, Vignettes and LICENSOR Marks from the Licensee Web Site and all Syndicators' Web sites and broadcast radio networks, as applicable; and (c) deliver to LICENSOR: (i) all copies of Programs, LICENSOR Content, the Modified LICENSOR Content, Promotions, Vignettes, the LICENSOR Marks or LICENSOR'S Confidential Information in its possession or control; and (ii) any other material produced hereunder which is owned by LICENSOR and all fees due to LICENSOR hereunder. 14. General 14.1 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. 14.2 Force Majeure. Neither 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 prompt, written notice thereof and, in any event, within three (3) days of discovery thereof, and uses its best commercial 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 -20- period of more than thirty (30) days, the Party not precluded from performing may terminate this Agreement without liability upon written notice. 14.3 Partial Invalidity. Should any provision of this Agreement be held to be void, invalid, unenforceable 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. 14.4 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. 14.5 Amendment. The provisions of this Agreement may be modified at any time by written agreement of the Parties. Any such agreement hereafter made shall be ineffective to modify this Agreement in any respect unless in writing signed by the Parties. 14.6 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. 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. 14.7 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, Federal Express 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 first set forth herein. Notices shall be sent to such addresses first 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. 14.8 Publicity. The Parties shall mutually agree upon and approve press release(s) or other public announcements announcing the nature, but not the terms, of their relationship under this Agreement. Neither Party shall use the other Parties' names, marks, logos, icons, trademarks, trade names or services marks without the prior, written approval of such other Party in each instance. 14.9 Third Party Acts and Omissions. Licensee shall at all times be liable and responsible for all acts and omissions of any Syndicators or other third parties to whom Licensee makes the Program available. 14.10 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 hereof. No amendment or modification of this Agreement shall be made except by a writing signed by the Party to be -21- bound thereby or the successor or assign of such Party. 14.11 Survival. Sections 1, 2.7, 6, 7, 8, 10, 11, 12, 13.5 and this Section 14 shall survive the expiration or termination of this Agreement. 14.12 Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of ____ 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 ____ located in ____ County. 14.13 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. IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the date first above written. MEGAPUB CO LICENSEE BROADCASTING INC. By:_____________________ By:________________________ Print Name: ______________ Print Name: _________________ Title: ___________________ Title: _______________________ Date: ___________________ Date: _______________________ SCHEDULE A SCHEDULE A-1 MEGAPUBCO CONTENT [TO BE PROVIDED BY LICENSOR] SCHEDULE A-2 LICENSEE BROADCASTING, INC. CONTENT [TO BE PROVIDED BY LICENSEE] SCHEDULE B HOSTING AND STREAMING STANDARDS AND PERFORMANCE LEVELS [Note to Licensee: Please provide for LICENSOR'S review Licensee's standards and performance levels for hosting and Webcasting.] SCHEDULE C LICENSOR DIRECT COMPETITORS [LICENSOR to insert direct competitors of its choice.] SCHEDULE D SPONSORSHIP AD INSERTIONS * One opening 15-second spot on each [Time Period] Program per sponsor. * One 15-second closing spot that rotates run of schedule on all Licensee online programs. -22- * One 15-second spot per sponsor that rotates run of schedule within Licensee's "What's on this [Time Period]" promo. * A sponsorship badge on the Program's Web site and within the player window. * Approximately thirty-two 30-second spots on the Licensee On-Air Network and four 15-second spots on Public Radio Incorporated. * Sponsorship package is structured to deliver approximately 2.6 million gross impressions: * Licensee.com: sponsor links, logos, online audio spots. * Licensee.com search, email, run-of-site rotation, newsletters, "What's on this [Time Period]" audio (accessed from homepage). * Licensee Radio Network * Public Radio Incorporated network * Estimated total monthly gross impressions. * Sponsor will be guaranteed 1 million monthly gross impressions delivered as a combination of both on-air and online impressions accumulated across the Licensee Broadcasting Network: comprised of the Licensee.com and Licensee's On-Air Network.