WEBCASTING AND RADIO BROADCAST AGREEMENT
This Agreement (the ‘‘Agreement’’) made as of this [Date] (the ‘‘Effective Date’’) by and between [Name of Licensor], having a principal place of business at [Licensor Address] (‘‘LICENSOR’’) and [Name of Licensee], having a principal place of business at [Licensee Address] (‘‘Licensee’’) (Licensor 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 Title] (‘‘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 co-produced audio program based on and comprised of such content (as further described 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. LICENSE GRANT
A. 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’’).
B. Program License. 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 defined below, to webcast and archive the Program on the Licensee Web Site.
C. Program Syndication. Subsequent to the Launch of Program, Licensee shall have the right to syndicate such Program, in the form in which it has been approved by LICENSOR to third parties on the World Wide Web (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 this Agreement, and conform to the standards and performance levels set forth in this Agreement, including without limitation, Licensee’s express warranties and Schedule B.
D. Editorial Rights. LICENSOR shall have sole editorial and creative control and approval over the Program, any promotions thereof, and the implementation and inclusion of the LICENSOR Content or the LICENSOR Marks therein. Before making any Program or any LICENSOR Content or LICENSOR Marks publicly available 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 [#] business days to review and approve such usage therein and for which approval shall not be reasonably withheld. In the event that LICENSOR determines that the proposed 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. 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.
E. 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.
F. Modified Content License. Subject to the terms and conditions of this Agreement, LICENSOR hereby grants to Licensee for the Term of this Agreement as recited herein, a non-exclusive, worldwide right and license to use, reproduce, distribute, transmit and publicly display the Modified Content in accordance with this Agreement. It is understood and agreed that LICENSOR will be able to provide the Content to third parties at its discretion.
G. Reservation of Rights. All rights with respect to the LICENSOR Content (and any portions, reproductions, derivative works or modifications thereof), the Program, the 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.
2. OBLIGATIONS OF LICENSOR
A. Providing Content. Within [#] 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.
B. Streaming Services. Notwithstanding anything to the contrary herein, LICENSOR shall employ Licensee’s streaming services in connection with its webcasting of the Program by or through third-party Web sites for the term of this agreement, as defined herein.
3. OBLIGATIONS OF LICENSEE
A. 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 [Duration] in length. Each [Time Period] Program shall cover [Describe Subject Matter]. 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.
B. 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 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.
C. Webcasting from the Licensee Web Site. On a [Time Period] basis, and subject to the review and approval process set forth in Section 1.D 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 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. 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.
D. 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 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.
E. 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, 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.
F. 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. Each audio Promotion shall contain at least ([#]) ad spots of at least ([#]) seconds each promoting the Program as well as excerpt(s) of the Program (each such excerpt, ‘‘Excerpt’’). 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.
G. 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 4. Licensee will collaborate with LICENSOR with respect to sponsorship pricing on a [Time Period] basis.
H. 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.
4. PRODUCTION SCHEDULE
A. Initial Launch. Licensee shall launch the first [Time Period] Program within [#] days of the Effective Date.
B. 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 ([#]) business days of receiving such [Time Period] Program from Licensee.
5. FEES, PAYMENT, REPORTS, AND AUDIT RIGHTS
A. Licensing Fee and Payment. Licensee shall pay to LICENSOR fees in the amounts, and in accordance with the terms, set forth herein: ([#])% 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 5.D.
B. 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 8.C and 8.D respectively.
C. 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.
D. Reports. Along with each Program Commission payment as set forth in 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: (i) 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, (ii) 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), (iii) Licensee’s marketing and promotion of the Program, (iv) the Program Commission (in detail, including, without limitation, the sources of all revenues), (v) 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), (vi) 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), (vii) 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), (viii) 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), (ix) 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), (x) 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], (xi) all End User Data and Listener Data, and (xii) 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.
E. Audit Rights. Licensee will maintain accurate books and records with respect to the calculation of all payments due under this Agreement. LICENSOR shall have the right, upon reasonable notice, to inspect Licensee’s books and records and all other documents and material in Licensee’s possession or control with respect to the subject matter of this Agreement. Licensor shall have free and full access thereto for such purposes and may make copies thereof. In the event that such inspection reveals an underpayment by Licensee of the monies owed under this Agreement, Licensee shall pay the difference, plus interest calculated at the rate of [number] Percent ([#]%) per month. If such underpayment is in excess of [number] U.S. Dollars ($[#]) for any Net Advertising Revenue Period, Licensee shall also reimburse Licensor for the cost of such Audit inspection. All books and records relative to Licensee’s obligations hereunder shall be maintained and made accessible to Licensor for inspection at a location in the United States for at least [number] years after termination of this Agreement.
6. PROPRIETARY RIGHTS
A. Ownership of Intellectual Property, Licensed Content and Derivatives Thereof. Licensee acknowledges and agrees that the Program, LICENSOR Content, Modified LICENSOR Content, Promotions, 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 any derivative works thereof, without the prior written approval of LICENSOR in each instance. Licensee hereby acknowledges and agrees that all such material(s) shall be ‘‘works made for hire’’ and that, in the event that any portion of the proprietary property defined herein 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 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 may be appropriate to the subject matter, and any extensions, continuations, and renewals thereof.
B. 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.
C. 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.
D. 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)) [Year, Name of Rights Holder] All Rights Reserved.’’
E. 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. 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 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.
7. CONFIDENTIAL INFORMATION
A. Confidential Information.’’Confidential Information’’ shall mean any confidential technical data, trade secret, know-how or other confidential information disclosed by any party hereunder in writing, orally, or by drawing or other form and which shall be marked by the disclosing party as ‘‘Confidential’’ or ‘‘Proprietary.’’ If such information is disclosed orally, or through demonstration, in order to be deemed Confidential Information, it must be specifically designated as being of a confidential nature at the time of disclosure and reduced in writing and delivered to the receiving party within [number] ([#]) days of such disclosure. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is known to the receiving party at the time of disclosure or becomes known to the receiving party without breach of this Agreement; (ii) is or becomes publicly known through no wrongful act of the receiving party or any subsidiary of the receiving party; (iii) is rightfully received from a third party without restriction on disclosure; (iv) is independently developed by the receiving party or any of its subsidiaries; (v) is furnished to any third party by the disclosing party without restriction on its disclosure; (vi) is approved for release upon a prior written consent of the disclosing party; (vii) is disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law.
C. The receiving party agrees that it will not disclose any Confidential Information to any third party and will not use Confidential Information of the disclosing party for any purpose other than for the performance of the rights and obligations hereunder during the term of this Agreement and for a period of [number] ([#]) years thereafter, without the prior written consent of the disclosing party. The receiving party further agrees that Confidential Information shall remain the sole property of the disclosing party and that it will take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information by its employees. No license shall be granted by the disclosing party to the receiving party with respect to Confidential Information disclosed hereunder unless otherwise expressly provided herein. Upon the request of the disclosing party, the receiving party will promptly return all Confidential information furnished hereunder and all copies thereof. The Parties agree that all publicity and public announcements concerning the formation and existence of this Agreement shall be jointly planned and coordinated by and among the Parties. Neither party shall disclose any of the specific terms of this Agreement to any third party without the prior written consent of the other party, which consent shall not be withheld unreasonably. Notwithstanding the foregoing, any party may disclose information concerning this Agreement as required by the rules, orders, regulations, subpoenas or directives of a court, government or governmental agency, after giving prior notice to the other party. If a party breaches any of its obligations with respect to confidentiality and unauthorized use of Confidential information hereunder, the non-breaching party shall be entitled to equitable relief to protect its interest therein, including but not limited to injunctive relief, as well as money damages notwithstanding anything to the contrary contained herein. Except as otherwise set forth in this Agreement, neither party will make any public statement, press release or other announcement relating to the terms of or existence of this Agreement without the prior written approval of the other.
B. 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.
C. 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 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.
8. LICENSOR’S COMPETITORS, CONTENT PLACEMENT AND LINKS
A. 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 8.A.
B. 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.
C. LICENSOR Marks and Links. The LICENSOR Marks 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’’).
D. 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’’).
9. WARRANTIES AND REPRESENTATIONS
A. 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; (iii) 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 (iv) the terms of this Agreement do not conflict with the terms of any other agreements to which LICENSOR is a party.
B. 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 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 9.B; and (vii) the terms of this Agreement do not conflict with the terms of any other agreements to which Licensee is a party.
C. 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.
10. 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 attorney’s 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 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.
11. 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.
12. TERM AND TERMINATION
A. Term. This Agreement and the provisions hereof, except as otherwise provided, shall be in full force and effect commencing on the date of execution by both Parties and shall extend for an Initial Term of [number] ([#]) years (the ‘‘Term’’). This Agreement shall be automatically renewed for additional ‘‘Extended Terms’’ each of [number] ([#]) years unless either party notifies the other in writing of its intention not to renew the Agreement, such notification to be provided at least [number] ([#]) days prior to the expiration of the then in-effect Term.
B. Termination for Breach. Either Party may terminate this Agreement upon [#] 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 [#] day period.
C. 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 [#] days of such filing, or has a trustee or receiver appointed for its business or assets or any portion thereof.
D. Termination for Failure to Remain Competitive. LICENSOR may terminate this Agreement, upon [#] 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.
E. 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: (i) 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; (ii) 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 (iii) deliver to LICENSOR: (a) 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 (b) any other material produced hereunder which is owned by LICENSOR and all fees due to LICENSOR hereunder.
13. GENERAL
A. 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.
B. Force Majeure. Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
C. 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.
D. 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.
E. 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.
F. 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.
G. 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.
H. 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.
I. 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.
J. Integration. This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
K. 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.
L. 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.
[LICENSOR]	[LICENSEE]	
By:	By:	
Print Name:	Print Name:	
Title:	Title:	
Date:	Date:	
SCHEDULE A
SCHEDULE A-1
[LICENSOR] CONTENT
[TO BE PROVIDED BY LICENSOR]
SCHEDULE A-2
[LICENSEE] CONTENT
[TO BE PROVIDED BY LICENSEE]
SCHEDULE B
HOSTING AND STREAMING STANDARDS AND PERFORMANCE LEVELS
SCHEDULE C
LICENSOR DIRECT COMPETITORS
[LICENSOR to insert direct competitors of its choice.]
SCHEDULE D
SPONSORSHIP AD INSERTIONS
[Detail advertising obligations]