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-1- 7.14 Form: Video Streaming/Downloading License Agreement This agreement (the "Agreement") dated as of _____________ (the "Effective Date") is made by and between __________________ ("Online Service"), and XYZ Recording Corporation ("XYZ"). 1. Definitions. "Approved Site(s)" means the Internet site(s) on the World Wide Web portion of the Internet which XYZ has approved for the display, [download,] broadcast and/or transmission by Online Service of the Audiovisual Work(s), as set forth on Schedule A, which Schedule may be amended from time to time by the parties. Such Approved Site(s) shall directly serve the Audiovisual Work(s) solely from the precise URLs as set forth on Schedule A, and shall not be framed on, nor frame or otherwise superimpose the Audiovisual Works into any other Internet site. 1.2 "Audiovisual Work(s)" means a music video as provided by XYZ to Online Service hereunder, as set forth on Schedule A hereto, which Schedule may be amended from time to time by the parties. 2. License Grant and Restrictions. 2.1 Broadcasting [and Downloading] of Audiovisual Work(s). XYZ hereby grants Online Service the non-exclusive, non-transferable, revocable, limited right during the Term (as defined below) to (a) digitize, encode, perform, reproduce, [distribute,] [NOTE: Only -2- grant distribution right if permitting digital downloads.] broadcast, transmit, [archive] [NOTE: Only grant archive right if permitting users to access the material on demand at a later date.] and store each Audiovisual Work solely for the purpose of (i) broadcasting, by digital audio transmission, the Audiovisual Work in its entirety on the Approved Site(s) [solely as an audiovisual stream] [and (ii) offering the Audiovisual Work in its entirety as a digital download from the Approved Site(s) to end users for their personal, non-commercial use]; and (b) incorporate Audiovisual Work(s) in Online Service promotions, publicity, other programs or advertising, all in accordance with XYZ's written approval as set forth below. [In 2.2, use (a) through (c) if not offering downloads; use (d) and (e) as anti-piracy measures at XYZ's discretion.] 2.2 Restrictions on Method of Broadcast. The Audiovisual Work(s) must at all times be offered and broadcast to end users via the Approved Site(s) in such manner so that [(a) the Audiovisual Work(s) cannot be downloaded, stored and/or redistributed by the end user, (b) only passive viewing and listening of the Audiovisual Work(s) by the end user is possible, (c) end users cannot alter or manipulate the order, outcome or content of the Audiovisual Work(s) in any manner, [and] (d) the sound quality is less than CD quality; (e) the video quality is less than professional broadcast quality; and] (f) they are broadcast in compliance with all current or future industry standards (including, but not limited to, those regarding music downloading, distribution and encryption); and (g) they are -3- broadcast using technology no less current than technology used by Online Service to broadcast audiovisual works for third parties. 3. Promotion. 3.1 Links and Placement. Online Service shall place links to Web sites designated by XYZ from the Approved Site(s) (the "XYZ Links"), the size, placement, prominence, appearance and other features of which shall be no less prominent in terms of size, placement, appearance and other features than any other comparable third party links, and such XYZ Links shall be subject to XYZ's prior approval. Such placement shall include but not be limited to any Web page of the Approved Site(s) on which the Audiovisual Work(s) is mentioned, referenced, made available or appears. Online Service shall prominently position the Audiovisual Work(s) on the appropriate music and music-related areas of the Approved Site(s), the size, appearance and other features of which shall be no less prominent in terms of size, placement, appearance and other features than any other comparable third party audiovisual work(s) which Online Service makes available on the Approved Site(s), and which shall be subject to XYZ's prior approval. 3.2 Advertising. The Web site pages featuring Audiovisual Work(s) shall not feature any advertisements, sponsorships, endorsements or other promotion of any kind without prior written approval of XYZ. For any advertising sold and placed by Online Service on the Web pages of the Approved Site(s) that contain XYZ Links or the Audiovisual Work(s) or references thereto, Online Service will pay to XYZ, on a -4- monthly basis, ____ percent of "Net Revenue" with respect to such advertising. Net Revenue means all amounts derived from the sale of such advertising received by Online Service from advertisers, less, with respect to such advertising, fees paid to third parties and other actual, reasonable and documented expenses associated with such advertising not to exceed ________ percent (__%) of such amounts. 4. Tracking and Reporting. Online Service will provide written monthly reports no later than fifteen (15) days after the conclusion of each month of the Term detailing: (i) monthly traffic from the Approved Site(s), including the total number of viewers of the Audiovisual Work(s); (ii) the average time duration of such access to the Approved Site(s) observed by Online Service with respect to the Audiovisual Work(s); and (iii) any other available information reasonably requested by XYZ. Online Service shall provide XYZ with tracking and reporting information that is equal to the tracking and reporting information given to any other third party. 5. Third Party Rights. Online Service shall secure permission, and will pay all amounts due, for any third party content or rights not owned and controlled by XYZ necessary for Online Service to perform the activities specified or contemplated herein with respect to the Audiovisual Work(s), including, but not limited to, the public performance and broadcasting of the Audiovisual Work(s), by or on behalf of Online Service on the Approved Site(s). -5- 6. Promotional Purposes. Notwithstanding anything to the contrary herein, use of the Audiovisual Work(s) hereunder by Online Service shall be for promotional purposes only. 7. Reservation of Rights. Except for the limited license expressly set forth herein, XYZ expressly reserves all rights now known or hereafter to become known in and to the Audiovisual Work(s). All rights, title and interest in and to the Audiovisual Work(s) (as provided by XYZ and as digitized or otherwise encoded, converted, formatted or reformatted by or on behalf of Online Service for public performance, broadcasting or archiving on the Approved Site(s) as permitted hereunder) in all media now known or hereafter developed, are owned and retained solely and exclusively by XYZ. Online Service agrees to furnish to XYZ on a regular basis during the Term or promptly upon XYZ's request, all Audiovisual Work(s) so modified by or on behalf of Online Service to enable Online Service to perform hereunder. 8. Confidentiality. Online Service agrees and acknowledges that the terms of this Agreement and any other information disclosed by XYZ to Online Service that XYZ considers proprietary or confidential, including, but not limited to, the Audiovisual Work(s) and all marketing concepts and strategies, and business, financial and technical information (collectively, "Confidential Information") includes highly confidential information about XYZ and its business and it agrees that Online Service will not disclose Confidential Information except in accordance with this Section 8. Online Service shall not make any announcements regarding the existence or -6- subject matter of this Agreement without XYZ's prior written approval. If Online Service is requested or becomes legally compelled to disclose any Confidential Information Online Service will provide XYZ with prompt written notice of that fact so XYZ may seek, with Online Service's reasonable cooperation, a protective order or other remedy. 9. Representations and Warranties. Online Service represents and warrants that its performance of all activities or provision of materials hereunder, including, but not limited to, the Approved Site(s), or exercise of any rights set forth herein, including, but not limited to, Online Service's encoding, conversion, formatting or reformatting for broadcasting of the Audiovisual Work(s) on the Approved Site(s) as provided herein, (a) does not and will not violate or infringe or misappropriate any right of privacy, personality or publicity, any copyright, patent, trademark, trade secret, or any other right of any third party, either in whole or in part; (b) does and will comply with all current applicable laws and regulations, and industry standards (including, but not limited to, those regarding music downloading, distribution and encryption); and (c) that it has the full power to enter into this Agreement and to perform fully hereunder. Online Service represents and warrants that the Approved Site(s) will be continuously accessible and fully operational (exclusive of reasonable, scheduled maintenance), and in the event it is not continuously accessible and fully operational Online Service will use commercially reasonable and diligent efforts to promptly restore the -7- continuous accessibility and full operability of the Online Service. 10. Disclaimer of Warranties. XYZ disclaims all warranties, express or implied, including, without limitation, implied warranties of merchantability and fitness for a particular purpose. No representation or affirmation of fact, including, but not limited to, statements regarding suitability for use or performance of the Audiovisual Works, whether made by XYZ's employees or otherwise, shall be deemed to be a warranty by XYZ for any purpose, or give rise to any liability of XYZ. 11. Limitation of Liability. In no event shall XYZ be liable for any incidental, indirect, special or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss) arising out of this Agreement or the use or inability to use the Audiovisual Work(s), even if advised of the possibility of such damages. In no event shall XYZ be liable for or in connection with the offer, sale or distribution of any products or services of or by Online Service via the Approved Site(s) or otherwise. [NOTE: Use A if advertising revenue will be paid to XYZ. Use B if no advertising revenue will be paid to XYZ.] [A][In no event shall XYZ's liability arising from or out of this Agreement exceed any amounts received pursuant to Section 3.2 of this Agreement.] [B][In no event shall XYZ's liability arising from or out of this Agreement exceed $1,000.] -8- 12. Indemnification. Online Service hereby agrees to indemnify and hold XYZ and its affiliates harmless from and against any fees, liabilities, claims, losses, damages or penalties (including reasonable attorneys' fees) incurred by XYZ as a result of Online Service's breach of the respective representations, warranties, rights or obligations herein regarding the Audiovisual Work(s). 13. Term and Termination. The term of this Agreement shall commence upon execution by the parties and will remain effective, unless earlier terminated as provided herein, for ___ months (the "Term"), and will be renewable upon written agreement of the parties. This Agreement may be revoked in its entirety, or in part, at any time by XYZ upon ten (10) business days written notice to Online Service. Upon termination or expiration of this Agreement for any reason, the licenses hereunder shall immediately terminate and Online Service shall promptly remove and destroy all Confidential Information and all copies of the Audiovisual Work(s) from the Approved Site(s), the Approved Site's servers or otherwise in the possession or control of Online Service. 14. Notices. All notices, requests and communications hereunder shall be in writing, and any such notice, request or other communication shall be deemed to have been duly given or made when delivered by hand, transmitted by facsimile and confirmed or, in the case of delivery by mail, when deposited in the mail, certified mail, return receipt requested, postage prepaid, to the signatory of this Agreement at the address indicated below. -9- 15. General. Online Service may not assign, transfer or sublicense this Agreement or any right or obligation under this Agreement to any third party and any attempt to do so shall constitute a material breach of this Agreement and shall be ineffective and void. In the event any one or more of the provisions hereof shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof. This Agreement or any provision hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the parties. This Agreement has been divided into numbered paragraphs and sections for convenience only, and it is understood that the rights and other legal relations of the parties hereto shall be determined from this instrument as an entirety and without regard to any division or headings of the paragraphs and sections. This Agreement, and any and all Schedules hereto, constitutes the entire agreement of the parties with respect to the subject hereof and shall supersede any prior agreement between the parties, whether written or oral, relating to the subject matter hereof. The waiver of either party of any breach of this Agreement shall not operate or be construed to be a waiver of any subsequent breach. The parties are independent contractors. This Agreement shall not create or evidence a partnership, joint venture or joint enterprise between the parties, and neither party shall have any fiduciary duties to the other with respect to the subject matter of this Agreement or otherwise. This Agreement will be governed and construed in accordance -10- with the laws of the State of New York. The exclusive forum for any disputes arising out of or from, or relating to, this Agreement shall be the federal or state courts located in New York, New York. XYZ RECORDING CORPORATION By: ___________________________________ Name: _________________________ Title: __________________________ Address: _______________________ Date: __________________________ ONLINE SERVICE By: _____________________________ Name: __________________________ Title: ___________________________ Address: _________________________ Date: ___________________________ -11- SCHEDULE A I. Approved Site(s) II. Audiovisual Work(s)