Exhibit 10.29
REALNETWORKS, INC.
REALCHANNELS AGREEMENT
This Agreement is made as of January 19th, 2000 ("Effective Date")
between RealNetworks, Inc., a Washington corporation located at 2601 Elliott
Ave., Suite 1000, Seattle, Washington 98121 ("RN"), and Global Media
("Participant"), with an address as set forth on Exhibit A.
This Agreement sets forth the terms and conditions under which RN
agrees to promote and distribute links to Participant's RealMedia content
(RealAudio, RealVideo, and other RN media types) and content headlines
described on Exhibit A (collectively "Content") as part of RN's RealChannels
program. In consideration for the mutual promises and covenants contained
herein, the parties agree as follows:
1. DESCRIPTION OF REALCHANNELS PROGRAM
1.1 REALCHANNELS ON THE REALPLAYER. Current versions of RN's RealPlayer
G2 software include buttons that link directly to live or simulated live
streaming media content delivered via the Internet ("RealChannels"). In this
Agreement, "RealPlayer" means all versions of RN's proprietary RealPlayer G2
software or subsequent versions that RN may introduce and distribute during
the Term, and includes both free and pay versions. RN may, in its discretion,
name, re-name, or change the branding or trademarks associated with the
RealChannels program, or any other aspect of the RealPlayer, at any time
without notice.
1.2 CONTENT DELIVERY CHANNELS. The RealChannels drive pointers (defined
as the related descriptions and pointers) to the Content into Web sites and
"push" applications delivering information directly to PC desktops via the
publicly accessible Internet and into proprietary online services and other
specialized services (collectively, "Content Delivery Channels").
2. RN OBLIGATIONS
2.1 INCLUSION ON CUSTOMIZATION PAGE. RN's Customization Page
("Customization Page") is a publicly accessible Web site that includes a list
of RealChannels from various RN content partners. Currently, the
Customization Page can be found at
http://208.147.89.194//customize.rxml?GU=9330211032a02&PV=6.0.3.143&os=
Win95%204.0.50240&category=0&tier=0&id=0&l=en&lid=0. RN may change the
location of the Customization Page at any time. End-users of the RealPlayer
can customize the RealChannels of the RealPlayer by selecting content
providers from the RealChannels Customization Page. RN will include
Participant's RealChannel on the Customization Page during the Term.
2.2 DEFAULT REALCHANNEL. A version of the RealPlayer in the language set
forth on Exhibit A (the "Local Language" RealPlayer) is distributed to end
users with certain pre-installed "default" RealChannels. RN agrees to include
Participant as a default RealChannel in the English Language RealPlayers
distributed by RN during the Term, subject to the limitations herein.
Participant's RealChannel will be a pre-installed default only in all
standard, non-custom English Language RealPlayers downloaded directly from RN
Web sites, or sold in non-bundled and non-customized versions through retail
distribution. Participant acknowledges that RealChannels may be customized by
individual end-users and that any RealChannel, including default
RealChannels, may be removed or repositioned by end-users.
2.3 DISTRIBUTION OF CONTENT HEADLINES AND POINTERS. RN may use and/or
distribute the Content Headlines or pointers to Participant's Content, but is
under no obligation to do so.
3. PARTICIPANT OBLIGATIONS
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3.1 CONTENT HEADLINE SPECIFICATIONS. Participant shall, on a daily
basis, provide Content Headlines and information about the foregoing to RN in
compliance with RN's Technical Specifications, currently available at
http://presets6.real.com/channelspartners/index.html, which RN may revise
from time to time.
3.2 NATURE OF CONTENT. Participant will provide Content for its
RealChannel in compliance with RN's Technical Specifications. Without
limiting the foregoing, the Content must be: (i) newsworthy, informational,
educational or produced for entertainment purposes, and not merely
promotional in nature; (ii) updated at least daily by Participant; and (iii)
encoded in the specified RN media formats available during the Term.
Participant shall, within thirty (30) days after the Agreement has been
executed, provide RN with at least three (3) clips of Content that are each
at least ten (10) minutes in length. Thereafter, Participant shall always
ensure that at least three ten-minute clips of Content are available at any
given time. The Content can be hosted by Participant or hosted by RN pursuant
to the terms of RN's standard Real Broadcast Network Services Agreement, if
Participant has signed such an agreement.
3.3 CONTENT QUALITY. RN reserves the right, in its sole discretion, to
terminate this Agreement under Section 9.2 below if the quality of the
Content does not meet RN's commercially reasonable standards concerning the
RealChannels program in any way. In the event of termination under this
Section 3.3, RN will offer Participant a pro-rata refund based on the
Participation Fee as set forth in Section 5.1 and the number of weeks left in
the Term.
3.4 DOWNLOAD REALPLAYER BUTTON. Throughout the Term, Participant will
prominently display above the fold on the home page of Participant's World
Wide Web site located at the URL set forth on Exhibit A ("Participant's
Site"), an RN-approved standard "Download RealPlayer" button, in the form
provided by RN, the current form of which is shown on Exhibit B. Such button
will link to the download area of RN's Web page from which end users may
download free and/or pay (or "plus") versions of the RealPlayer, in the Local
Language version. As used in this Section 3.4 and in Section 3.5, "above the
fold" means placement on a Web page in a manner such that an end user viewing
the page in a browser window of 640x480 pixels can view the entire button
without scrolling.
3.5 REALGUIDE BUTTON. During the Term of this Agreement, Participant
will display on Participant's Site an RN approved standard "RealGuide" button
that will directly link to RN's RealGuide. The current version of such button
is shown on Exhibit B.
3.6 USE OF REALMEDIA FORMATS ON PARTICIPANT'S WEB SITES. Participant
agrees that any content made available in streaming media formats on
Participant's Site during the Term will be made available in RealMedia
formats (e.g., RealAudio, RealVideo, or other RN proprietary media formats).
Participant will not promote any other streaming media format on
Participant's Site more prominently that RN's. Participant shall link to its
RealChannel from a relevant, prominent location on Participant's Site. If
Participant chooses to provide a link from its RealChannel to Participant's
Site, such link must be to a Web page containing only RealMedia formatted
content, if Participant includes streaming media content on that Web page.
3.7 EXCLUSIVITY. Participant will not promote any other streaming media
player on Participant's Site more prominently than the RealPlayer, provided
that Participant will not promote or provide opportunities to download any
other streaming media player on the linked-to page of Participant's Site. If
Participant chooses to provide a link from its RealChannel to Participant's
Site, or to any Web site, no more that ten percent (10%) of the
non-Participant linked-to pages on the Web sites at any time may provide the
opportunity to download any software media player other than the RealPlayer.
3.8 MAINTENANCE OF CONTENT. As between RN and Participant, and except as
expressly provided herein, Participant is solely responsible and liable for
the Content, and RN assumes no responsibility for editing, reviewing,
controlling or any other activities associated with distributing any of the
Content and shall not be liable to any third party in connection with such
activities, unless RN undertakes such responsibilities. Participant shall be
solely responsible for all costs and activities associated with the creation,
maintenance, licensing, use and correction of the Content.
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3.9 NO HIRE. During the Term of this Agreement and for a period of two
(2) years after termination of this Agreement, Participant agrees not to
hire, as an employee, contractor or consultant, or to appoint to its board of
directors, any then-current RN employee or any former employee who has left
RN within the then-preceding twelve (12) months or who is otherwise
prohibited by the terms of an non-competition agreement from working for a
competitor of RN, in which case Participant shall not hire such former
employee until the expiration of said 12 month period or the term of his or
her non-compete, whichever is later. A breach of this Section by Participant
shall give RN the right to terminate this Agreement as provided in Section
9.2 below.
4. LICENSE
4.1 CONTENT HEADLINES AND POINTERS. Participant hereby grants RN a
non-transferable, worldwide, royalty-free license to: (i) link to the Content
from the Content Headlines and Participant's RealChannel button through the
Local Language RealPlayer; and (ii) use, transmit, distribute and
redistribute Content pointers and other Participant links and descriptions of
Content or Participant's RealChannel(s) to Content Delivery Channels in order
to make Participant's Content accessible to Content Delivery Channels'
end-users. RN shall have the right to include links to Participant's Content
from all versions of RN's RealGuide, including syndicated versions, however
named or distributed.
4.2 TRADEMARK LICENSE. Participant grants RN a non-exclusive,
nontransferable, worldwide, royalty-free license to use Participant's
trademarks and logos in connection with this Agreement, in the style and
manner currently used by Participant and as communicated to RN. Subject to
such style and manner restrictions, RN may use Participant's name,
trademarks, logo, and RealChannel graphics in RN's marketing and advertising
materials. Except as expressly provided herein, RN shall not be deemed by
anything contained in this Agreement to acquire any right, title or interest
in any trademark of Participant, and shall do nothing to prejudice the value
or validity of Participant's rights therein or ownership thereof.
5. PAYMENTS
5.1 PAYMENT TO RN. Participant shall pay to RN a participation fee (the
"Participation Fee") of Two Million Nine Hundred Twenty Thousand
dollars ($2,920,000) for participation throughout the initial Term as a
hard default RealChannel within the RealPlayer, as set forth in Exhibit
A. The Participation Fee is due in full upon execution of this
Agreement and is nonrefundable. The Participation Fee shall be paid as
follows:
$ 300,000 on signing of this Agreement;
$ 220,000 on March 31, 2000
$ 1,200,000 on May 1, 2000
$ 1,200,000 on June 15, 2000
5.2 EXCLUSIVE OF TAXES. All payments due hereunder are exclusive of any
applicable taxes. Participant shall be responsible for all applicable
national, state, and local taxes, value added or sales taxes, tariffs,
exchange, interest, banking, collection, and other charges and levies and
assessments pertaining to payments other than U.S. taxes based on RN's income.
5.3 NO WITHHOLDING. All payments by Participant to RN pursuant to this
Agreement shall be made without any withholding or deduction of any
withholding tax or other tax or mandatory payment to government agencies. If
Participant is legally required to make any such withholding or deduction
from any payment to RN under this Agreement, the sum payable by Participant
upon which such withholding or deduction is based shall be increased to the
extent necessary to ensure that, after such withholding or deduction, RN
receives and retains, fee from liability for such withholding or deduction, a
net amount equal to the amount RN would have received and retained in the
absence of such required withholding or deduction.
5.4 PROVIDE RECEIPTS. In order to assist RN in obtaining tax credits or
deductions, Participant shall provide to RN, in form acceptable to RN,
original or certified copies of all tax payment receipts or other evidence of
payment of taxes by Participant with respect to transactions or payments
under this Agreement.
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6. ADVERTISING
6.1 INTRA-STREAM ADS. Participant shall retain one hundred percent
(100%) of the revenue from its sale of audio, video, multimedia, banner, or
other advertising embedded in the Content by Participant ("Intra-Stream
Ads"). Participant shall at all times clearly differentiate advertising from
Content.
6.2 OTHER ADS. RN agrees that it will not insert pointers to RN's own
media-based advertisements prior to pointers to the Content clips that RN
distributes to Content Delivery Channels.
6.3 NO "AMBUSH" ADVERTISING. Participant shall not run Intra-Stream Ads
or non-Intra-Stream Ads in Participant's Live Station for streaming media
technology, streaming media players or streaming media websites owned or
operated by Microsoft Corporation or Apple Computer.
7. PROPRIETARY RIGHTS
7.1 OWNERSHIP OF CONTENT. As between RN and Participant, Participant
remains the owner of all right, title and interest in and to the Content and
any Content Headlines, and all copyrights, trademarks, and other intellectual
property rights therein. Notwithstanding the foregoing, RN will retain all
right, title, and interest in and to any Content Headlines authored by RN if
Participant fails to provide a headline for Content as specified in the
Technical Specifications.
7.2 RN'S OWNERSHIP. Except as provided in Section 7.1, RN shall be the
sole owner of all right, title and interest in and to any content made,
created, developed or used by RN in connection with the Content on RN's Web
sites, the RealChannels, and all copyrights, trademarks, patents and other
intellectual property rights therein. Participant represents and warrants
that it has not and shall not acquire any right or interest in any trademark
or trade name owned or used by RN, and that under no circumstances will it
use, register or attempt to register any trademark, service mark, trade name,
domain name or similar indicia containing the word "Real," or any other mark
or domain name used by or confusingly similar to a mark used by RN,
regardless of spelling or translation thereof.
8. WARRANTIES/INDEMNIFICATIONS
8.1 PARTICIPANT WARRANTIES. Participant warrants and represents that:
(i) the Content does not in any way violate any existing law, infringe upon
or misappropriate any copyright, patent, trademark, trade secret, right of
publicity, right of privacy or other proprietary rights of any third party,
either in whole or in part; (ii) the Content contains no matter which, if
published, will be libelous or defamatory; (iii) Participant has the
necessary rights to grant RN the rights granted hereunder; (iv) the Content
complies with all laws applicable to the transmission or use of the Content
as specified in this Agreement for each country in which the Content is
intended to be delivered; and (v) it is solely responsible for, and has paid
or will pay, all amounts due any person or entity that has a right to receive
any royalty or other payment as a result of RN's authorized use of the
Content pursuant to this Agreement. Participant acknowledges that RN and its
affiliates are the owners and/or licensees of the trademarks, service marks,
commercial symbols and trade names used by RN.
8.2 PARTICIPANT INDEMNITY. Participant hereby agrees to indemnify, hold
harmless and defend RN from all claims, damages, costs and expenses,
including reasonable attorneys' fees and litigation expenses, arising out of
or as a result of Participant's breach of the above warranties and
representations or this Agreement. Notwithstanding the foregoing, Participant
shall not be liable for any material not contained in or a part of the
Content Headlines and inserted in the Content Headlines by RN, whether with
or without the permission of Participant. Participant, at its own expense,
shall have the right to employ separate counsel and participate in the
defense thereof.
8.3 RN WARRANTIES AND INDEMNITY. RN hereby warrants and represents to
Participant that (i) the RN trademarks, service marks and trade names do not
in any way violate existing laws or infringe upon or misappropriate any
rights of third parties, and (ii) RN has all rights, title and authority
necessary to enter into this Agreement and perform as herein required. RN
agrees to indemnify and hold harmless and defend Participant from
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all claims, damages, costs and expenses including reasonable attorneys' fees
and litigation expenses, arising out of or as a result of RN's breach of the
warranties set forth in this Section 8.3.
9. TERM AND TERMINATION
9.1 TERM. Unless sooner terminated as provided herein, the Initial Term
of this Agreement shall commence as of the Effective Date and expire one year
thereafter. This Agreement will renew automatically for additional one year
periods, unless either party notifies the other party in writing of its
intent not to renew at least thirty (30) days prior to the end of the initial
Term or any subsequent renewal Term. As used herein, "Term" means the initial
Term and any renewal Term.
9.2 TERMINATION FOR BREACH. If either party materially breaches any
provision of this Agreement and such breach has not been cured within fifteen
(15) days after the other party has given written notice of such breach, the
non-breaching party may terminate this Agreement upon fifteen (15) days'
written notice to the breaching party. RN may terminate this Agreement
immediately without further notice if payment is not received in accordance
with this Agreement.
9.3 TERMINATION FOR INSOLVENCY. RN may, at its option and upon written
notice, terminate this Agreement, effective immediately, should Participant:
(i) admit in writing its inability to pay its debts generally as they become
due; (ii) make a general assignment for the benefit of its creditors; (iii)
institute proceedings to be adjudicated a voluntary bankrupt, or consent to
the filing of a petition of bankruptcy against it; (iv) seek reorganization
under any bankruptcy act, or consent to the filing of a petition seeking such
reorganization; or (v) have a decree entered against it by a court of
competent jurisdiction appointing a receiver, liquidator, trustee or assignee
in bankruptcy or in insolvency covering all or substantially all of such
party's property or providing for the liquidation of such party's property or
business affairs, provided such decree is not dismissed within forty-five
(45) days.
9.4 EFFECT OF TERMINATION. Upon termination or expiration of this
Agreement for any reason, all licenses granted herein shall terminate except
that RN shall have five (5) business days to remove Participant's RealChannel
and Content Headlines from Content Delivery Channels. Sections 5, 6, 7, 8,
9.4, and 10.4 shall survive the expiration or termination of this Agreement
for any reason.
10. MISCELLANEOUS
10.1 EXCLUSION OF CERTAIN DAMAGES. EXCEPT WITH RESPECT TO PARTICIPANT'S
OBLIGATIONS UNDER SECTION 8.2, NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PARTY IN TORT, CONTRACT OR UNDER ANY OTHER LEGAL THEORY FOR ANY
CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL LOSS OR DAMAGES ARISING OUT OF
THIS AGREEMENT, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.2 NOTICES AND CONTACT INFORMATION. Any notice or payment to be made or
given to either party shall be sufficiently made or given on the date of
receipt if addressed to RN as set forth below or to Participant as set forth
on Exhibit A and (i) if delivered personally with receipt acknowledged; or
(ii) sent by DHL Worldwide Express or comparable international courier
service for the soonest possible delivery. Either party may change its notice
and contact information by providing notice, in the manner set forth above,
to the other party.
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RN:
Vice President, Media & Distribution
RealNetworks, Inc.
2601 Elliott Ave.
Seattle, Washington 98121
U.S.A.
Fax: (206) 448-0427
With a copy to:
VP & General Counsel
at the same address
Fax: (206) 674-2695
10.3 NON-ASSIGNMENT. This Agreement is personal to Participant.
Participant may sublicense, assign, or otherwise transfer any of its rights
in this Agreement (whether by merger or transfer of control), only with the
prior express written consent of RN which consent will not be unreasonably
withheld, provided that transfers of stock in Participant to wholly owned
affiliates or related entities of Participant, in which no actual change in
ultimate ownership or control takes place, are permitted upon prior written
notice to RN.
10.4 GOVERNING LAW AND DISPUTE RESOLUTION. This Agreement shall be
governed by the laws of the State of Washington, United States of America,
without regard to conflicts of law provisions, and Participant consents to
the exclusive jurisdiction and venue of the state and federal courts sitting
in the State of Washington. This Agreement shall not be governed by the
United Nations Convention of Contracts for the International Sale of Goods,
the application of which is hereby expressly excluded. Upon request by RN,
Participant shall execute any document or instrument, undertake any action,
or refrain from any action if such execution or action is reasonably
necessary to make the foregoing choice of law and choice of forum effective
and enforceable.
10.5 PRESS RELEASES. Neither party shall issue any press releases
relating to this Agreement or the relationship between the parties without
the other party's review of and written consent to the press release.
10.6 GENERAL. No waiver, amendment or modification of any provision of
this Agreement shall be effective unless it is in a document that expressly
refers to this Agreement and is signed by both parties. Except as
specifically provided herein, failure or delay by either party in exercising
any rights or remedy under this Agreement shall not operate as a waiver of
any such right or remedy. The parties are separate and independent legal
entities, and the relationship between the parties shall be that of
independent contractors. It is expressly understood that the parties do not
by this Agreement intend to form, nor shall this Agreement be construed to
constitute, a partnership or joint venture between them. If any provision of
this Agreement shall be held by a court of competent jurisdiction to be
illegal, invalid or unenforceable, the legality, validity and enforceability
of the remaining provisions shall not, in any way, be affected or impaired
thereby. This Agreement and the attached Exhibits, which are incorporated
herein by this reference, constitute the complete and entire agreement
between the parties, and supersede and cancel all prior negotiations,
understandings, correspondence and agreements, oral and written, express or
implied, between the parties relating to the subject matter hereof, and shall
be binding only when executed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement by
their duly authorized representatives.
REALNETWORKS, INC. GLOBAL MEDIA CORP.
By: /s/ T. F. Frank By: /s/ Rob Fuller
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Name: Thomas F. Frank Name: Rob Fuller
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Title: COO Title: CEO
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Date: Date:
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EXHIBIT A
DESCRIPTION OF CONTENT
PARTICIPANT CONTACT INFORMATION:
FULL CORPORATE NAME: Global Media Corporation
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Address: 400 Robson Street
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City, State/Country, Vancouver, BC, Canada
Postal Code (if any): V6B 2B4
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CONTACT PERSON: Winston Barta
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Title: Vice President & Director
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Phone: (604)688-9994
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Fax: (604)688-9996
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Email: Winston@globalmedia.com
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WITH COPY TO:
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Title:
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Phone:
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Fax:
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Email:
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PARTICIPANT'S CONTENT:
Participant's Content will consist of the following: (insert short
description): music and video/entertainment programming
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Participant's RealChannel Category: Hard
Default
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Content to be hosted in the following datatypes (E.G., RealAudio, RealVideo,
RealPix): G2 RA RV
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LOCAL LANGUAGE VERSION: Yes (English Language Version)
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PARTICIPANT'S URL: www.globalmedia.com
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PARTICIPATION FEE: $2,920,000
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EXHIBIT B
SPECIFICATIONS OF REALPLAYER BUTTON
RN Graphic for RN Search = 88 x 33- bitmap
[GRAPHIC OMITTED]
SPECIFICATIONS OF REALGUIDE BUTTON
RN Graphic for RN Search = 128 x 67- bitmap
[GRAPHIC OMITTED]
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