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EXHIBIT 10.24
REALNETWORKS, INC.
CONTENT LICENSE AND PROMOTION AGREEMENT
This Content License and Promotion Agreement ("Agreement"), effective August 14,
2000 through November 14, 2000 (the "Term"), is between RealNetworks Inc., a
Washington corporation located at 2601 Elliott Ave., Suite 1000, Seattle,
Washington 98121 ("RN"), and Corpas Investments, Inc., d/b/a MediaWebcast
("Provider"), a Florida corporation located at the address set forth below. This
Agreement sets forth the terms and conditions under which RN will license the
content from Provider, and promote such content to RN's end users.
WHEREAS, RN has developed, markets and distributes: (a) consumer media
software applications, known as RealPlayer Plus, RealJukebox Plus, and Real
Entertainment Center Plus, including all updates however named or distributed
during the Term, ("Plus Products"); and (b) editorially-driven Internet web
sites and services that showcase multimedia content available on the Internet
("RN Properties"), which are accessible in RN's proprietary media delivery
software applications, including the Plus Products (collectively, "RN
Software");
WHEREAS, Provider has developed, promotes and markets the Content
described on Exhibit A ("Content"); and
WHEREAS, Provider will exclusively provide Content to RN for use in
RN's promotional and marketing activities in the RN Properties, which are
designed to offer end users an incentive to purchase Plus Products (the
"Promotions," which are more fully described herein and on Exhibit A). The
Content shall be accessible to Plus Products end users ("Plus Users") from
select areas on Provider's Internet web site ("Provider's Site"), the RN
Properties, and the Plus Products.
NOW THEREFORE, in consideration for the mutual promises and covenants
contained herein, the parties agree as follows:
1. Grant of License.
(A) GENERAL. During the Term, and solely in connection with the Promotions,
Provider hereby grants RN the worldwide right and license to: (a)
encode the Content into formats described on Exhibit A and copy such
encoded files onto RN servers; (b) use, copy, host, record, store
digitally or otherwise, and make audio and video reproductions of the
Content; (c) publicly perform, publicly display, electronically
transmit, distribute, broadcast and rebroadcast the full-length Content
via the Internet; (d) edit, create, publicly perform, publicly display,
reproduce and transmit excerpts of the Content, the length of which
shall be no longer than fifteen (15) seconds ("Excerpts") for use in
"Take 5," RN's proprietary, editorially-driven Internet streaming and
digital media promotion service; and (e) use the trademarks, logos and
trade names of Provider ("Provider's Marks") in connection with the
Promotions, in a form and manner approved by Provider; and (d) use the
names, likenesses, images, voices, trademarks, and biographical
information of the performers associated with or contained within the
Content.
(B) EXCLUSIVITY. During the Term, Provider shall not offer or provide the
Content to any third party for any of the uses described in Section 1
(a) above, or for any other use over the Internet.
2. PROVIDER OBLIGATIONS. Except as expressly set forth herein, Provider,
and not RN, shall be solely responsible for all costs, activities,
obligations and liabilities associated with: (a) obtaining all rights
and licenses necessary for RN's authorized use of the Content
including, but not limited to, all copyright, trademark rights, rights
of publicity and rights of privacy, and any broadcast, rebroadcast, or
retransmission rights or permissions; (b) obtaining all necessary
permissions and/or release documentation from all persons associated
with the Content including, without limitation, all performers; and (c)
providing the Content to RN (including written text and images), in the
form and manner as mutually agreed between Provider and RN.
Additionally, Provider shall promote the Content and the Promotions in
the manner described on Exhibit A.
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3. RN'S OBLIGATIONS. RN shall, via the Promotions, promote and market the
Content in the RN Properties as an incentive for users to purchase Plus
Products. Each end user that directly links to the Plus Products
download page from the Promotions and subsequently purchases a Plus
Product(s) during that linked session is a Plus User, and shall receive
access to the Content. RN and Provider will use commercially reasonable
efforts to limit access to the Content to Plus Users. Except as
expressly set forth herein, RN, and not Provider shall responsible for
all costs, and activities incurred by RN that are associated with
hosting and encoding the Content, and with the Promotions. In
connection with RN's use of the Content as described herein, RN shall:
(a) accord Provider with credit in the form and manner communicated to
RN by Provider; (b) promote the Content in accordance with the
additional promotional activities described on Exhibit A; and (c)
provide Provider with the encoded Content files by no later than sixty
(60) days from the expiration or termination of this Agreement.
4. OWNERSHIP. As between Provider and RN, Provider owns all copyright,
trademark, patent and other intellectual property rights in and to, and
all other right, title and interest in and to the Content, Provider's
Marks, and the Excerpts. As between RN and Provider (excluding the
Content, Provider's Marks or other intellectual property provided by
Provider to RN), RN owns all copyright, trademark, patent and other
intellectual property rights therein, and all other right, title and
interest in and to or associated with the Promotions, the Plus
Products, Plus Users, RN's Marks, the RN Properties, and the RN
Software.
5. RN'S PROMOTIONAL USE. Provider agrees that RN may, during the Term, use
the Content and Provider's Marks in connection with RN's marketing and
promotional materials and product demonstrations relating to the Plus
Products or other related RN Properties.
6. FEES AND ROYALTIES. In consideration for RN's use of the Content, and
all promotional activities and exclusive licenses set forth above, RN
will pay Provider in accordance with the payment terms set forth on
Exhibit A.
7. TERMINATION. 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 immediately. 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 the Content from RN's server. Sections 4,
7, 8, 9, 10, 11, 12, 15 and 17 shall survive the expiration or
termination of this Agreement for any reason.
8. PROVIDER INDEMNIFICATION. Provider shall defend, indemnify, and hold RN
harmless against any and all claims, damages, costs, and expenses
(including reasonable attorneys' fees) arising out of or in connection
with any third party claim that: (a) the Content in any way violates
any existing law, infringes upon or misappropriates 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; (b) the Content contains matter which, if published, will be
libelous or defamatory; (c) Provider has not obtained a necessary
consent, license, permission or release necessary to grant RN the
rights granted hereunder; (d) the Content does not comply with any
federal, state and local laws and regulations that are applicable to
the transmission or use of the Content as permitted or contemplated by
this Agreement for each country in which the Content is intended to be
transmitted or delivered; (e) Provider has not accorded credit to a
third party with respect to, or to respect any third party's rights
against changes to the Content; (f) Provider does not have the full
power and authority to enter into this Agreement and to perform its
obligations hereunder; or (g) Provider has not paid any amounts due any
third-party content Provider or other person or entity that has a right
to receive any royalty or other payment as a result of the transmission
or other use of the Content as contemplated by or provided under this
Agreement.
9. RN INDEMNIFICATION. RN shall defend, indemnify, and hold Provider
harmless against any and all claims, damages, costs, and expenses
(including reasonable attorneys' fees) arising out of or in connection
with any third party claim that: (a) the Promotions in the RN
Properties, other than as supplied, permitted, or instructed by
Provider, violate any existing law, infringe upon or misappropriate any
third party proprietary rights, either in whole or in part; (b) that RN
does not have the full power and authority to enter into this Agreement
and to perform its obligations hereunder; or (c) the proprietary
portions within the RN Properties (not including content supplied by
third parties or by Provider) violate any existing law, infringe upon
or misappropriate any
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copyright, patent, trademark, trade secret, right of publicity, right
of privacy or other proprietary or intellectual property rights of any
third party, either in whole or in part.
10. CONDITIONS OF INDEMNIFICATION. A party's obligation to indemnify the
other party is expressly conditioned on the Indemnified Party: (a)
giving written notice of the claim promptly to the Indemnifying Party;
(b) giving the Indemnifying Party control of the defense and settlement
of the claim utilizing, if necessary, legal counsel to be selected by
the Indemnifying Party upon approval of the other party; (c) providing
to the Indemnifying Party all available information and assistance (at
the Indemnifying Party's expense); and (d) not compromising or settling
such claim, without the other party's prior written consent.
11. LIMITATION OF LIABILITY. NO PARTY SHALL BE LIABLE TO THE OTHER PARTY IN
TORT, CONTRACT OR UNDER ANY OTHER LEGAL THEORY FOR ANY CONSEQUENTIAL,
INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL LOSS OR DAMAGES ARISING OUT
OF THIS AGREEMENT, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES
OCCURRING.
12. NOTICES AND CONTACT INFORMATION. Any notice or payment to be made or
given to any party shall be sufficiently made or given on the date of
mailing if addressed to RN or Provider as set forth below and: (a) if
delivered personally with receipt acknowledged; or (b) sent by Federal
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.
RN: MEDIAWEBCAST:
General Counsel Gene Fein, President
RealNetworks, Inc. MediaWebcast
2601 Elliott Ave. 1640 Fifth Street, Suite 218
Seattle, Washington 98121 Santa Monica, California 90401
U.S.A. U.S.A.
With a copy to: Gail F. Rosenblum
Leigh McMillan at the same address
at the same address
13. NON-ASSIGNMENT. No party may assign, sublicense, transfer, encumber or
otherwise dispose of this Agreement without the prior written approval
of the other party, which shall not unreasonably be withheld. Any
attempted assignment, sublicense, transfer, encumbrance or other
disposal of this Agreement by either party in violation of this
provision will constitute a material default and breach of this
Agreement. Except as otherwise provided, this Agreement will be binding
upon and inure to the benefit of the parties' successors and lawful
assigns.
14. TERM RENEWAL. RN may renew the agreement for a subsequent three (3)
month renewal period on a non-exclusive basis upon written notice at
least thirty (30) days prior to the end of the initial Term.
15. CONFIDENTIALITY. The parties acknowledge that confidential information
is valuable and unique and that disclosure in breach of this
confidentiality provision will result in irreparable injury to its
owner. From the Effective Date and for a period of three (3) years from
the date of termination or expiration of this Agreement, neither party
shall use, disclose, or permit any person to obtain any confidential
information of the other party. As used herein, "confidential
information" includes any materials developed or generated hereunder
(whether or not such confidential information is in written or tangible
form) that is marked confidential or, if not so marked, could
reasonably be interpreted to be confidential. If either party receives
a request from any third party for the confidential information of the
other party, or if such party is directed to disclose any portion of
any confidential information of the other party by operation of law or
in connection with a judicial or governmental proceeding or
arbitration, it will immediately notify the other party and will assist
the other party in seeking a suitable protective order or assurance of
confidential treatment to preserve the confidentiality of any such
confidential information. If either party breaches or threatens to
breach of the terms of this confidentiality provision, the
non-breaching party shall be entitled to an injunction prohibiting any
such breach.
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Any such relief shall be in addition to and not in lieu of any
appropriate relief in the way of money damages.
16. PRESS RELEASES AND PUBLIC STATEMENTS. No party shall issue any press
releases or make public statements relating to this Agreement or the
relationship between the parties without the other party's review of
and written consent to such press release or public statement.
17. MISCELLANEOUS. This Agreement constitutes the final agreement between
the parties with regard to the subject matter herein, and supersedes
and cancels all prior negotiations, understandings, correspondence and
agreements, oral and written, express or implied, between the parties
with regard to the subject matter herein. 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. 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 independent
contractors. Neither party shall be deemed to be an employee, agent,
partner or legal representative of the other for any purpose and
neither shall have any right, power or authority to create any
obligation or responsibility on behalf of the other. This Agreement
shall be governed by the laws of the State of California without regard
to conflicts of law provisions. In any action or suit to enforce any
right or remedy under this Agreement or to interpret any provision of
this Agreement, the prevailing party shall be entitled to recover its
costs, including reasonable attorneys' fees.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized representatives.
REALNETWORKS, INC. CORPAS INVESTMENTS, INC.
D/B/A MEDIAWEBCAST
By: /s/ Mark Hael By: /s/ Molly A. Miles
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Name: Mark Hael Name: Molly A. Miles
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Title: VP Media Programming Title: CEO
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Date: 8/14/00 Date: 8/10/00
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EXHIBIT A
DESCRIPTION OF CONTENT:
The Content is a forty (40) minute video featuring the most popular and highest
quality video segments from the Provider UFO video archive. Provider will assume
all editing and production responsibility associated with creating the Content.
Provider will edit the film in such a way that RN may offer eight (8) complete
shorter segments of the film, primarily for narrowband use.
PROMOTION BY RN:
RN will promote availability of the Content and Promotion through RN web site
properties and RN products. In addition, RN agrees to provide Provider's online
property, UFOTV, appropriate branding attribution and distribution on an
editorially-driven basis through Real.com Network channels.
PROMOTION BY PROVIDER:
Provider agrees to promote RN's exclusive UFO Player Plus promotion from
UFOTV.com during the term of the promotion. Should Provider make the highlight
film available on their online properties after the Term, it shall be featured
exclusively in RealVideo 8.
RESTRICTIONS ON REALPLAYER PLUS USERS ACCESS:
RN shall be responsible for all back-end work associated with the exclusive
Player Plus promotion, including creating a secure web site where Player Plus
users only may view the Content.
PAYMENT TERMS:
RN will pay Provider a one (1) time, all-in licensing fee of twenty thousand
dollars ($20,000), payable in full within ten (10) business days after
execution of this Agreement. All payments due hereunder are exclusive of any
applicable taxes, and Provider 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 the payments.
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applicable taxes, and Provider 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
the payments.