6.12 Media Streaming AgreementMEDIA STREAMING AGREEMENT This Media Streaming Agreement (this "Agreement"), dated as of __________
(the "Effective Date") is made by and between ____________, a/n ____________
corporation with its principal place of business at _______________ ("Content-
Owner"), and ____________, a/n ____________ corporation with its principal place
of business at _______________ ("Channel-Owner").
WHEREAS, Content-Owner owns and operates ____________;
WHEREAS, Channel-Owner owns and operates an Internet broadcast service
known as ____________ (the "Network"); and
WHEREAS, Channel-Owner desires to obtain from Content-Owner, and Content-
Owner desires to provide to Channel-Owner, a license to transmit the audio-
visual content of Channel-Owner described in Exhibit A via Internet transmission
using and through the Network. NOW, THEREFORE, in consideration of the mutual promises contained in this
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Definitions.
1.1. "Ad Insertion" means the insertion by the Network of advertising
transmitted in a Streaming Media Broadcast so that such advertising is inserted
with synchronized audio and/or visual components without interfering with
Licensed Content.
1.2. "Above the Fold" means a location within the top 400 pixels of a Web
site.
1.3. "Branded Channel-Owner HTML Player" means Channel-Owner's proprietary
browser-based content player, which is branded to include Content Owner Marks.
This player is specifically designed to function in conjunction with other
Channel-Owner tool sets.
1.4. "Channel-Owner Marks" means those Marks owned by Channel-Owner and
described in Exhibit B.
1.5. "Channel-Owner Solution" means the combined Channel-Owner targeted
rich media Ad Insertion and Gateway Ads accompanied by (SPECIFY TOOL SETS) and
all other Channel-Owner proprietary tool sets.
1.6. "Channel-Owner Web site" means the Internet Web site located at URL:
http://www.channel-owner.com.
1.7. "Confidential Information" means any information, communication or
data, in any form, including, but not limited to, oral, written, graphic or
electromagnetic forms, models or samples, which are of such a nature that the
receiving party should reasonably understand that the disclosing party desires
to protect such information, communication or data against unrestricted
disclosure or use, including, without limitation, software, research, know-how,
site traffic, performance data, business information, business plans, financial
data and marketing data. Confidential Information will not include any
information if: (1) it is publicly available through no fault of the receiving
party; (2) the receiving party gets it from a third party who had the right to
provide it; (3) the receiving party independently develops it or knew it before
receiving it hereunder; or (4) the disclosing party discloses it to a third
party without restriction.1.8. "Content-Owner Marks" means those Marks owned by Content-Owner and
described in Exhibit B.
1.9. "Content-Owner Web site" means the Internet Web site located at URL:
http://www.content-owner.com (refer to Exhibit A).
1.10. "End-User" means an individual with a computer connected to, and
receiving data from, the Internet using a version of Netscape Navigator,
Microsoft Internet Explorer or (SPECIFY ANY OTHER BROWSERS) then supported by
the manufacturer thereof.
1.11. "Gateway Ad" means an advertisement appearing at the front of an
End-User's computer screen as the result of the linking by the Network during a
Streaming Media Broadcast to such advertising from a non-Network Web site, all
without interfering with Licensed Content.
1.12. "Licensed Content" means the primary audio-visual broadcast program
data of Content-Owner offered to End-Users, with the exception of syndicated
programming which Content-Owner does not have rights to rebroadcast over the Internet.
1.13. "Mark" means any word, name, symbol or device, or any combination
thereof used by a person or entity to identify and distinguish its goods and/or
services, including, without limitation, the trademarks and service marks of
such person or entity registered and in good standing with the United States
Patent and Trademark Office.
1.14. "Rights Fees" means royalties and other compensation paid in
consideration of broadcast rights.
1.15. "Streaming Media Broadcast" means the transmission of digital
information from a Web site to End-Users through Internet connections and
technologies that allow reproduction of such digital information as audio-visual
content on the End-Users' computers.
1.16. "Term" will have the meaning set forth in Section 7.1. below.
2. Obligations. 2.1. Channel-Owner Obligations. Channel-Owner agrees, during the Term, to
make available and provide End-Users upon their request with Streaming Media
Broadcasts of specified Licensed Content. Channel-Owner agrees to use
commercially reasonable efforts to market and promote these Streaming Media
Broadcasts so as to maintain and increase the goodwill and reputation of
Content-Owner and its services. Channel-Owner agrees to provide, during the
Term, real-time profile and demographic information of End-Users using the
Channel-Owner Solution. Channel-Owner agrees to install and set-up the proper
equipment and software to provide the Channel-Owner Solution, including, without
limitation, the Branded Channel-Owner HTML Player. Channel-Owner agrees to
provide all necessary or useful technical support and assistance to address and
resolve all technical issues for the installation and ongoing operation of the
Channel-Owner Solution and any affiliate support. Channel-Owner agrees to
provide Streaming Media Broadcasts of Licensed Content without restriction to
all current and potential End-Users. Channel-Owner agrees to use commercially
reasonable efforts to sell available online inventory through its direct
relationships with (INSERT MEDIA PLACMENT COMPANY) or any other subsequently
assigned advertising agencies and media placement firms. Channel-Owner will
provide and maintain an e-mail messaging system that will allow direct
communication with Content-Owner listeners who choose to accept such
communications as approved by Content-Owner as well as provide a traffic
referral process to further increase traffic across the Network. Channel-Owner
will be responsible for the Rights Fees accruing from Streaming Media
Broadcasts.2.2. Content-Owner Obligations. Content-Owner agrees, during the Term, to
exclusively utilize the Channel-Owner Solution technology for (1) all of
Content-Owner's live or quasi-live streaming music content which is streamed at
or below 32kbps and accessed from the Content-Owner Web site; and (2) all Ad
Insertions and Gateway Ads sold on such content by (INSERT MEDIA PLACMENT
COMPANY), which will provide an amended agreement to Content-Owner for ad
placement on the Network. Content-Owner may utilize a temporary, alternate
transmission method when technical issues prevent Channel-Owner from fulfilling
its transmission obligations to Content-Owner. Content-Owner will maintain a T-1
connection or greater for its live or quasi-live broadcasts.
3. Grant of Rights.
3.1. Streaming Media. Subject to the terms and conditions of this
Agreement, Content-Owner hereby grants to Channel-Owner, during the Term, an
exclusive, royalty-free, non-transferable right and license to distribute,
access, transmit, publicly perform, or copy, by means of electronic and/or
Internet broadcast or transmission, any or all of the Licensed Content through
Streaming Media Broadcasts. Content-Owner agrees that Channel-Owner will have
the right to insert into each Transmission, Ad Insertion and Gateway Ad having a
maximum aggregate duration of eight (8) minutes per hour, and sixty (60) seconds
per commercial, the content, nature and timing of which will be determined by
Channel-Owner at Channel-Owner's sole discretion; provided, however, that
Channel-Owner's commercial Ad Insertion will not interfere with Licensed
Content. One (1) minute of the eight (8) minutes each hour will be used as
Promotional Inventory for the benefit of Content-Owner. Content-Owner
acknowledges and agrees that any development or production costs associated with
creation of the promotional ad spots will be the sole responsibility and
obligation of Content-Owner. Subject to the limitations set forth above,
Content-Owner, at its sole discretion, may add additional commercial inventory
as Content-Owner believes is appropriate for Content-Owner's programming.
3.2. Content-Owner Web Site. Subject to the terms and conditions of this
Agreement, Content-Owner hereby grants to Channel-Owner, during the Term, the
right to link the Channel-Owner Web site to Licensed Content Web site via
hyperlink. Content-Owner agrees to provide Channel-Owner with all necessary
templates, source codes, artwork and graphics necessary to promote Streaming
Media Broadcasts, and to create and maintain a Channel-Owner-branded "Listen
Live" hyperlink button and the associated hyperlink from the Content-Owner Web
site to the Channel-Owner Web site. The size of the "Listen Live" button will be
at least 90x60 pixels. The "Listen Live" button and associated hyperlink will in
all events be located Above The Fold on the Content-Owner Web site page and be
viewable without scrolling the window when the top of such page is viewed using
a standard Web browser at a screen resolution of 800x600 pixels with the window
maximized to the full size of the screen. Content-Owner will display the
Channel-Owner Marks, with appropriate notification of Channel-Owner's ownership
of such Marks, on the Content-Owner Web site in a manner that is consistent with
its placement of other parties' Marks, but in any event that is visible and
prominent, or as reasonably requested by Channel-Owner.3.3. Channel-Owner Web Site. Subject to the terms and conditions of this
Agreement, Channel-Owner hereby grants to Content-Owner, during the Term, the
right to hyperlink the Content-Owner Web site to the Channel-Owner HTML player.
Channel-Owner agrees to provide Content-Owner with all necessary templates,
source codes, artwork and graphics necessary to promote Streaming Media
Broadcasts and to create and maintain a Content-Owner-branded "Listen Live"
hyperlink button and the associated hyperlink from the Channel-Owner Web site to
the Content-Owner Web site. Channel-Owner will display the Content-Owner Marks
on the Channel-Owner Web site visibly and prominently in a manner that is
consistent with its placement of other parties' trademarks at locations
reasonably requested by Content-Owner and with appropriate notification of
Content-Owner's ownership of the Marks.
3.4. Trademark Licenses. Subject to the terms and conditions of this
Agreement, each party hereby grants to the other, during the Term, a non
exclusive, royalty-free, non-transferable license to use the granting party's
Marks described in Exhibit B solely for the purposes contemplated by this
Agreement. Each party reserves the right to review and approve all uses of its
Marks. Each party reserves the right to alter or discontinue use of any of its
Marks at any time upon thirty- (30-) days' written notice to the other party. In
the event that a party to this Agreement begins use of a new Mark or alters or
discontinues use of an existing Mark, such party will promptly provide the other
party with notice of such event, along with copies of any new or altered Marks,
and the receiving party will revise its uses of the granting party's Marks to
reflect the addition, alternation or discontinuance reflected in the notice. 4. Fees.
4.1. Revenue Payments. Channel-Owner will pay to Content-Owner a
__________ percent (__%) share of the Net Advertising Revenue generated from the
selling of advertising on the Licensed Content. The amount deducted from Gross
Advertising Revenues, to define the Net Advertising Revenue, will not exceed
__________ percent (__%) of the Gross Advertising Revenue. This will include all
Net Advertising Revenues generated from either Ad Insertions or Gateway Ads
through Licensed Content. Content-Owner will have the right, not more frequently
than once each calendar year during the Term, during normal business hours and
upon reasonable notice of not less than three (3) business days, to audit
records with respect to the subject matter of this Agreement. Such audit will be
conducted during normal business hours at Channel-Owner's offices and at any
other locations as may be necessary, in such a manner as not to interfere with
Channel-Owner's normal business activities. Any such audit, and all information
and documentation obtained in connection therewith, will be borne by Content-
Owner unless the audit determines that the amount of payments due and payable
during the audit period were ninety percent (90%) or less of the amount
calculated by Channel-Owner, in which case Channel-Owner will bear such audit
costs. Payments made pursuant to this Section 4.1. will be made available
through summary reports setting forth the information necessary to certify that
such payment has been computed in accordance with the terms of this Agreement
and will be paid within thirty (30) days of receipt of same. Content-Owner will
have the right to designate (INSERT MEDIA PLACMENT COMPANY) for its account
notwithstanding any termination or modification of the terms of the current
contractual arrangements between Channel-Owner and (INSERT MEDIA PLACMENT
COMPANY). In no event will advertisement placement commissions paid to (INSERT
MEDIA PLACMENT COMPANY) exceed the lesser of (1) __________ percent (__ %),
which is Content-Owner's and Channel-Owner's current individual commission rate
with (INSERT MEDIA PLACMENT COMPANY); or (2) rates charged consistent with
commissions paid by other affiliates of Channel-Owner in conjunction with any
advertising representation agreement between (INSERT MEDIA PLACMENT COMPANY) and
Channel-Owner.4.2. Licensing Requirements. Channel-Owner will be solely responsible for
securing all licenses and rights required for the Streaming Media Broadcast of
Licensed Content over the Network. Furthermore, Channel-Owner will be
responsible for payment of all music licensing and other royalty payments
accruing from such Streaming Media Broadcasts, including, without limitation,
those payable to (INSERT PARTICULAR LICENSORS, IF YOU ARE AWARE OF ANY, SUCH AS
BMI, SESAC AND ASCAP). Channel-Owner's payment obligation will be limited to the
portion of such payments arising from revenues derived from audio, visual and/or
rich-media audiovisual advertising inserted by Channel-Owner and revenues
derived from any other revenue-generating activities of the Licensed Content,
such as sales of collateral merchandise on and through the Channel-Owner HTML
Player. Channel-Owner will have no responsibility for any portion of such
payments based on revenues derived from sources other than the foregoing.
5. Additional Channel-Owner Services.
5.1. Additional Services. Throughout the Term, Channel-Owner will have a
right of first negotiation to provide Content-Owner and the Content-Owner Web
site with Internet-related services. Channel-Owner will respond to written
requests from Content-Owner within seventy-two (72) hours as to whether a new
Internet-related service contemplated by Content-Owner is subject to the
limitations of this Section 5.1. Content-Owner agrees to discuss and negotiate,
exclusively and in good faith, with Channel-Owner for a period of ten (10)
business days regarding Channel-Owner's providing such services before
negotiating the provisions of such services with any third party. For such
planned service, if Content-Owner and Channel-Owner are unable to reach
agreement on the terms under which Channel-Owner would provide the services,
Content-Owner will thereafter be free to enter into an agreement with any other
party or parties to provide the planned services.
5.2. E-commerce Opportunities. Channel-Owner reserves the right to provide
e-commerce opportunities to other customers, including, without limitation, Ad
Insertions and Gateway Ads. These opportunities will be offered to, but not
necessarily limited to, increased CPMs (COST PER THOUSAND; SEE GLOSSARY) or in
addition to existing CPMs, the content, nature and timing of which will be
determined at Channel-Owner's sole discretion; provided, however, that these e-
commerce opportunities will not interfere with Licensed Content and Content-
Owner will have a right of prior approval of such commercials, which approval
will not unreasonably be withheld or delayed.
5.3. Refer a Friend. Channel-Owner reserves the right to provide a "Refer
a Friend" program which will allow Channel-Owner to send an e-mail campaign to
Content-Owner "Listen Live" users, inviting them to refer a friend to that
"Listen Live" Streaming Media Broadcast. The e-mail will contain the station
"brand," thus providing the opportunity for an increased cumulative audience.
5.4. Listen Live Referral Program. Channel-Owner reserves the right to
provide a "Listen Live Referral Program" that will allow Channel-Owner to
include a Content-Owner Web site link to referral program partners. This program
includes but is not limited to destination web sites, ISPs and other high-
traffic web sites for the sole purpose of increasing Channel-Owner's and
Content-Owner's listener base.
6. Representations and Warranties; Indemnity.6.1. Representations of Content-Owner. Content-Owner represents and
warrants that (1) it has the rights to grant to Channel-Owner the licenses
described in Section 2.2 above; (2) Content-Owner's use of the Channel-Owner
Marks pursuant to the terms of this Agreement will not cause such Marks to
infringe the rights of any third party (unless such Marks were already
infringing such rights prior to Content-Owner's use thereof); (3) no information
contained in the Licensed Content is or will be obscene, libelous or slanderous,
or infringe the copyright, privacy or other rights of any third party; and (4)
it has the legal and corporate authority to enter into this Agreement.
6.2. Representations of Channel-Owner. Channel-Owner represents and
warrants to Content-Owner that (1) Channel-Owner will transmit over the Network
each Streaming Media Broadcast in accordance with any reasonable instructions
provided by Content-Owner and will perform its obligations hereunder in
accordance with the requirements of applicable laws and regulations and without
violation of any patent, copyright, trademark, right of privacy or non-publicity
or any other intellectual property right of any person; (2) the Channel-Owner
Marks, as used by Channel-Owner, do not infringe the copyright or other property
rights of any third party and Channel-Owner has or will satisfy all requirements
of the Copyright Act or other law or regulation necessary to allow Streaming
Media Broadcasts by Channel-Owner, including, without limitation, obtaining all
necessary licenses to make such transmissions as set forth in Section 4.2 above;
(3) none of the information, goods or services included on the Channel-Owner Web
site will be obscene, libelous or slanderous, or infringe the copyrights or
other property rights of any third party; and (4) Channel-Owner's use of the
Content-Owner Marks will not cause such Marks to infringe the rights of any
third party (unless such Marks were already infringing such rights prior to
Channel-Owner's use thereof).
6.3. Indemnity. Each party (an "Indemnifying Party") hereby indemnifies
and holes harmless the other party and such other party's parents, subsidiaries
and affiliates (each, an "Indemnified Party") from and against all claims,
costs, liabilities, judgments, expenses and damages (including amounts paid in
settlement and reasonable attorneys' fees) (collectively, "Losses"), arising out
of or in connection with the Indemnifying Party's breach of this Agreement or of
any warranties or representations made herein. The Indemnifying Party will
promptly notify the Indemnified Party in writing of any action, suit, proceeding
or investigation ("Proceeding") for which indemnification is sought; provided,
however, that any failure to so notify the Indemnifying Party will not relieve
the Indemnifying Party from any liability or obligation that it may have to the
Indemnified Party except to the extent of any material prejudice to the
Indemnifying Party resulting from such failure. If any such Proceeding is
brought against an Indemnified Party, the Indemnifying Party will be entitled to
participate therein, at its own cost, and to assume the defense thereof with
counsel satisfactory to the Indemnifying Party within fifteen (15) days after
written notice of such Proceeding will have been received by the Indemnifying
Party pursuant to the preceding sentence. Each Indemnified Party will be
obligated to cooperate reasonably with the Indemnifying Party, at the expense of
the Indemnifying Party, in connection with such defense and with the compromise
or settlement of any such Proceeding. Neither the Indemnified Party nor the
Indemnifying Party will settle or dispose of any Proceeding in any manner which
involves a remedy other than the payment of money damages by such Indemnified
Party or Indemnifying Party, respectively, without the prior written consent of
the other.
7. Term and Termination.7.1. Term. The term of this Agreement will commence on the Initial
Transmission Date and end on the twenty-four- (24-) month anniversary of the
Initial Transmission Date, unless earlier terminated pursuant to this Section
7.1 (the "Term"). Upon completion of the initial term of the contract, the
contract will automatically renew for one twelve- (12-) month period, unless the
other party receives prior written notice within ninety (90) days of the
expiring term. Channel-Owner retains rights of first negotiation on any future
contracts related to Ad Insertion technology.
7.2. Termination by Content-Owner. Content-Owner may terminate this
Agreement if: (1) Channel-Owner fails to make two or more consecutive monthly
payments due to Content-Owner under this Agreement; provided, however, Content-
Owner provides Channel-Owner thirty (30) days written notice of its intention to
terminate, and Channel-Owner fails to make all payments then due to Content-
Owner within such notice period, unless Content-Owner and Channel-Owner have a
bona fide dispute regarding such amounts due and owing, in which case Channel-
Owner will pay Content-Owner such sums to the extent that such amount is not
disputed and will deposit the disputed amount with a commercial bank acting as
escrow agent to hold such balance until resolution of such dispute; or (2) if
Channel-Owner fails to provide Streaming Media Broadcasts for a period of more
than seven (7) consecutive days; or (3) subject to the assumptions set forth in
Exhibit C, Channel-Owner fails to generate at least __________ percent (__%) of
its projected twelve- (12-) month revenues at the end of the first year,
providing that Content-Owner is able to meet Content-Owner's projected listener hours.
7.3. Termination by Channel-Owner. Channel-Owner may terminate this
Agreement, if Content-Owner, at any time, fails to provide Licensed Content for
more than seven (7) consecutive days for use by Channel-Owner to provide
Streaming Media Broadcasts. In the event Channel-Owner terminates this Agreement
pursuant to this Section 7.3, no further payments whatsoever are due or payable
to Content-Owner. In addition, Channel-Owner will have the right to cancel this
Agreement in the event that Content-Owner fails to generate at least __________
percent (__%) of its projected twelve- (12-) month total listening hours at the
end of the first year as more particularly described on Exhibit C.
7.4. Termination by Either Party. Either party may terminate this
Agreement upon written notice to the other party in the event that either the
Copyright Act or the regulations of the Copyright Office are modified or
interpreted by a court or by the Copyright Office or other governmental entity
in such a way that such party's continued performance under this Agreement would
constitute infringement of the copyrights or other rights of any third party
that cannot be cured by annual royalty payments which do not cause the aggregate
rights fees payable to materially increase above what they otherwise would have
been. With respect to any circumstance not specifically set forth in Sections
6.1, 6.2, or 6.3, either party may terminate this Agreement upon immediate
notice to the other party if the other party ceases to do business or otherwise
terminates its business, becomes insolvent or seeks protection under any
bankruptcy, receivership, trust, deed, creditor's arrangement or comparable
proceeding or such a proceeding is instituted against the other party and is not
dismissed within thirty (30) days thereafter or either party may terminate this
Agreement upon ninety (90) days written notice to the other party in the event
that the other party materially breaches this Agreement and fails to cure such
breach within such notice period.
8. Confidentiality. The parties agree that they will not disclose one another's
Confidential Information to any third party, or make any use of one another's
Confidential Information for any purpose not contemplated by this Agreement,
without prior written consent. Neither party will issue any press release or
make any other public statement regarding this Agreement or any activities or
transactions contemplated herein without the prior written consent of the other party.
9. Notices. All notices and other communications between the parties hereto will
be in writing and deemed received (1) when delivered in person; (2) upon
confirmed transmission by facsimile device; or (3) five days after being
deposited in U.S. mails, postage prepaid, certified or registered mail,
addressed to the other party at the address set forth below (or such other
address as such other party may supply by written notice):Channel-Owner:
(INSERT NAME AND ADDRESS)
with a copy to:
(INSERT NAME AND ADDRESS)
Content-Owner:
(INSERT NAME AND ADDRESS)
with a copy to:
(INSERT NAME AND ADDRESS)
10. Miscellaneous. 10.1. This Agreement will be governed by, and construed in accordance
with, the laws of the United States and the State of (INSERT).
10.2. The remedies provided herein will be cumulative and will not
preclude assertion by any party hereto of any other rights or the seeking of any
other remedies against the other party hereto. No failure to exercise and no
delay in exercising any right, power or privilege granted under this Agreement
will operate as a waiver of such right, power or privilege. No single or partial
exercise of any right, power or privilege granted under this Agreement will
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
10.3. Whenever possible, each provision of this Agreement will be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement will be prohibited by or invalid under
applicable law, such provision will be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
10.4. This Agreement may be modified or amended only by a writing signed
by Content-Owner and Channel-Owner.
10.5 This Agreement expresses the entire understanding of the parties with
respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and undertakings of the parties with respect to the
subject matter hereof.
10.6 Until such time as (INSERT MEDIA PLACMENT COMPANY) and Channel-Owner
execute an amendment to the Internet Sales Representation Agreement, dated
(INSERT), that memorializes the rights and obligations of Channel-Owner and
(INSERT MEDIA PLACMENT COMPANY) regarding (INSERT MEDIA PLACMENT COMPANY)'s
referral of streaming media production companies and clients to Channel-Owner,
(INSERT MEDIA PLACMENT COMPANY) will be a third-party beneficiary to this
Agreement for the sole purpose of its right to represent Content-Owner
advertising inventory over the Network pursuant to this Agreement. As used
herein, the term "right to represent" means that (INSERT MEDIA PLACMENT COMPANY)
will at all times have the right to sell advertisements and earn commissions
from Ad Insertions and Gateway Ads as described in Section 2.2 above. The term
"Content-Owner advertising inventory" means the Ad Insertions and Gateway Ads
described in Section 3.1 above. Notwithstanding the designation of (INSERT MEDIA
PLACMENT COMPANY) as a third-party beneficiary of this Agreement for the limited
purposes described in this Section 10.6, Channel-Owner and Content-Owner will
each be entitled to exercise any and all rights under this Agreement, including,
without limitation, such party's right to terminate the Agreement as set forth
in Section 7 above.
10.7. Each party will pay all of its own expenses; including attorneys'
fees incurred in connection with the negotiation of this Agreement and the
performance of its obligations hereunder.
10.8. This Agreement may be executed in counterparts and by facsimile
signature, each of which will be deemed to be an original but which taken
together will constitute one agreement.
10.9. Except as otherwise expressly provided herein, this Agreement and
the rights hereunder will not be assignable or transferable by either party
without the prior written consent of the other party; provided, however, that
either party hereto may assign its rights to any parent or subsidiary or any
entity that acquires substantially all of the stock or assets of such party, in
which case such assignee will assume all obligations and rights of such party
under this Agreement.
10.10. This Agreement will not be construed to create a partnership, joint
venture, agency or other legal relationship between the parties, or to form any
other legal entity. Each party to this Agreement will be deemed an independent
contractor with respect to the other. No party to this Agreement, or its
representatives, will have any authority to bind the other party in any way.
10.11. The titles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this Agreement.
10.12. The parties acknowledge and agree that (1) each party's Marks are
and will remain the sole property of that party; (2) nothing in this Agreement
will convey to either party any right of ownership in the other party's Marks;
(3) neither party will now or in the future contest the validity of the other
party's Marks; and (4) neither party will in any manner take any action that
would impair the value of, or goodwill associated with, such Marks. The parties
acknowledge and agree that all use of the other party's Marks by a party will
inure to the benefit of the party whose Marks are being used.
10.13. Each party will retain all rights in any software, ideas, concepts,
know-how, development tools, techniques or any other proprietary material or
information that it owned or developed prior to the Effective Date, or acquired
or developed after the Effective Date, without reference to or use of the
Confidential Information of the other, regardless of whether any such item is
embodied in any materials provided to the other hereunder. Content-Owner will
not, and will not permit any other person to, disclose, display, loan, publish,
transfer (whether by sale, assignment, exchange, gift, operation of law or
otherwise), license, sublicense, copy or otherwise disseminate any software
owned or licensed by Channel-Owner, in whole or in part, to any third party
without the prior written consent of Channel-Owner or unless otherwise expressly
permitted in Section 3 above. Content-Owner will not, and will not permit any
other person to, disassemble, decompile, reverse engineer or otherwise recreate
any software owned or licensed by Channel-Owner or corresponding source code.IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Effective Date.
Content-Owner
By:______________________
Name:____________________
Title:___________________
Channel-Owner
By:______________________
Name:____________________
Title:___________________
Exhibit A
(DESCRIBE CONTENT OWNER'S CONTENT AS IT RELATES TO CONTENT-OWNER'S VARIOUS
BRANDED WEB SITES.) Exhibit B
(DESCRIBE CHANNEL-OWNER'S AND CONTENT-OWNER'S TRADEMARKS AND SERVICE MARKS.) Exhibit C
(DESCRIBE FINANCIAL ASSUMPTIONS, INCLUDING CURRENT AND PROJECTED SIZE OF TARGET
AUDIENCES, ADVERTISING RATES AND COLLATERAL SALES.)
