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Exhibit 10.5
TELEVISION STATION AGREEMENT
This Agreement (the "Agreement") is entered into by and between Yahoo! Inc., a
Delaware corporation ("Yahoo") and Independent Music Network, Inc., a Delaware
corporation ("Station"), known jointly as the Parties, this 20th day of March,
2000. In consideration of the mutual promises contained herein, the Parties
agree as follows:
1. DEFINITIONS:
Unless otherwise specified, capitalized terms used in this Agreement
shall have the meanings attributed to them in EXHIBIT A hereto.
2. YAHOO COVENANTS:
(a) Yahoo will design, host and maintain the Access Page. The audio and/or
audiovisual files of the Programming will be directly accessible from
such locations on the System designated by Yahoo, including, but not
limited to, the Access Page. Station acknowledges that as between Yahoo
and Station, Yahoo has the exclusive right to sell, and all revenue
derived from, all advertising on the Yahoo Properties, including
sponsorships and advertising on the Access Page, and shall accept or
refuse any such advertising in its sole discretion.
(b) Yahoo hereby grants Station the right***
(c) Yahoo or a Yahoo Affiliate (as determined by Yahoo) will utilize its
streaming software and hardware as necessary to transmit, distribute,
perform and display the Programming as provided herein, and will
provide the server space for the archive of the Programming.
(d) Yahoo grants Station a non-exclusive, worldwide, royalty-free license
to use, reproduce, distribute and display the Yahoo Brand Features in
connection with Station's marketing and promotion of the Programming,
provided that in all such cases, Station's uses of the Yahoo Brand
Features are approved in advance by Yahoo in writing and are in
compliance with Yahoo's trademark usage guidelines.
3. STATION COVENANTS:
(a) Station hereby grants to Yahoo and its Affiliates (i) the worldwide,
***, royalty-free right and license to encode, store, publicly
distribute, transmit, perform, display, copy, prepare derivative
works, and market the Programming on the System solely for the
purposes contemplated in paragraph 2(c) of this Agreement, for the
term of this Agreement; (ii) the worldwide, ***, royalty-free
license to use, reproduce and display Station's Brand Features and
the Materials in connection with the presentation of the
Programming on the Yahoo Properties, and in connection with the
marketing and promotion of the Programming and the Yahoo Properties
subject to reasonable quality control standards; (iii) the right
to use excerpts from the Programming and Materials, including
still images and likenesses, for general business purposes and for
promotion of the Yahoo Properties provided appropriate ownership
credit is granted to Station; and (iv) the right to grant any
sublicenses reasonably necessary to carry out the activities
contemplated under this Agreement, subject to prior written
approval by Station. In addition, Station grants Yahoo and its
Affiliates the right to maintain a copy of the Programming for a
period not to exceed thirty (30) days to be made available for
on-demand access and use on the System during the term of this
Agreement. Nothing in this Agreement obligates Yahoo to provide
Station at any time any physical embodiment or electronic copy of
any stored images encoded by Yahoo under this Agreement.
(b) Station will provide current schedules, lists of artists, bands,
musicians and guests, where applicable, and updates of Programming
which shall be made available to Yahoo through Station's website.
(c) Station agrees to pay Yahoo a fee equal to *** for
streaming the Programming at a *** rate during the term of this
Agreement. Station agrees to pay Yahoo an additional fee equal to
*** for streaming the Programming at a *** rate
during the term of this Agreement. Station agrees to pay Yahoo an
additional fee equal to $3,000 per month for streaming the Programming
at a 100Kbps rate to up to *** simultaneous users during the
term of this Agreement. Such fees will be due and payable within ***
days after receipt by Station of an invoice from Yahoo.
(d) Station agrees to provide Yahoo access to the Programming and to
provide technical assistance to Yahoo in accessing the Programming as
necessary.
(e) Station acknowledges that Yahoo does not make any representations or
warranties regarding the ability or exposure of the System.
(f) Station hereby agrees that it will use any information and data
collected by Yahoo on behalf of Station or otherwise provided to
Station pursuant to this Agreement, if any, in accordance with any and
all applicable laws and regulations, federal or state, governing the
use of user information, including any and all applicable privacy laws.
Station
*** Portions of this Exhibit have been omitted based upon a request for
confidential treatment. The omitted material has been filed separately
with the Securities and Exchange Commission.
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acknowledges that Yahoo has the right, at Yahoo's sole discretion, to
provide notice to users where any information is being collected by
Yahoo on behalf of Station, including links to Station's privacy
policy, if any. Further, Station will use such information and data
only as authorized by the user, and shall not disclose, sell, license
or otherwise transfer any such user information to any third party or
use the user information for the transmission of "junk mail," "spam,"
or any other unsolicited mass distribution of information.
4. CONFIDENTIALITY:
The terms and conditions of this Agreement are confidential and may not
be disclosed by Yahoo or Station to any third parties except to their
professional advisors, or except: (1) to the extent necessary to comply
with any applicable federal, state, and/or local laws, to comply with
any regulatory requirements or mandates, or to comply with a valid
order of a court of competent jurisdiction, in which event the
disclosing party shall notify the other party as promptly as
practicable (and, if possible, prior to making any disclosure) and
shall in all cases seek confidential treatment of this Agreement; (2)
as part of its normal reporting or review procedure to its parent
company, accountants, auditors, and its attorneys, provided such parent
company, accountants, auditors and attorneys agree to be bound by the
provisions of this Agreement, (3) as part of normal and customary due
diligence in seeking potential acquisition, merger, joint venture or
strategic alliance and/or investment partners or suitors, provided such
receiving party agree to be bound by the provisions of this Agreement,
or (4) as necessary or appropriate in order to enforce either parties
rights under this Agreement. Neither Party shall make any public
announcement regarding the existence or content of this Agreement
without the other party's prior written approval and consent.
5. REPRESENTATIONS AND WARRANTIES:
(a) Each Party has all requisite corporate power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has
been duly authorized, executed and delivered by each Party, constitutes
the valid and binding agreement of such Party, and is enforceable
against such Party in accordance with its terms.
(b) Station hereby represents and warrants to Yahoo that (i) the
Programming is owned or licensed by Station, (ii) Station holds all
rights material to this Agreement throughout the world, (iii) the
encoding, storage, transmission, retransmission, distribution,
performance, display and broadcast of the Programming and Materials by
Yahoo, and all copying contemplated by this Agreement or necessary to
effectuate these activities, and Yahoo's exercise of any other rights
granted by Station herein, will not violate or infringe any right of
privacy, personality or publicity, any Intellectual Property Right, or
any other right of any third party, or result in any tort, injury,
damage or harm to any person, (iv) the Programming and Materials as
provided by Station to Yahoo do not contain any libelous, defamatory,
obscene or slanderous material, and (v) Station has the worldwide right
to license to Yahoo the right to encode, store, transmit, perform,
retransmit, duplicate, and publicly distribute the Programming and the
Materials on the System and all other rights as provided herein. It is
understood and agreed that Yahoo does not intend and will not be
required to edit or review for accuracy or appropriateness any
Programming or Materials.
(c) Station will be solely responsible for the acquisition of any and all
third party clearances, permissions and licenses which are necessary in
connection with the broadcast by Yahoo of the Programming, including,
without limitation, with respect to the use of any copyrighted and/or
trademarked materials and the use of any names, likenesses and/or
biographical materials, and for the payment of any and all applicable
guild fees and for any and all residuals, payments, fees or royalties,
if any, payable under any collective bargaining agreement or otherwise.
By way of example, and not limitation or obligation, as between Yahoo
and Station, Station would be liable to pay any residuals required to
be paid under any "Basic Agreement" of the Director's Guild of America,
the Writer's Guild of America, or the Screen Actor's Guild for
"Supplemental Market" showings of the Programming.
6. INDEMNIFICATION:
*** Station, at its own expense, will indemnify, defend and hold harmless
Yahoo, its Affiliates and their employees, representatives, agents and
affiliates from and against any and all losses, claims, damages,
liabilities, obligations, penalties, judgments, awards, costs, expenses
and disbursements, including without limitation, the costs, expenses
and disbursements, as and when incurred, of investigating, preparing or
defending any action, suit, proceeding or investigation, caused by,
relating to, based upon, arising out of or in connection with (i) any
breach by Station of the representations or warranties made by it under
this Agreement, (ii) the transmission, retransmission, distribution or
broadcast of the Programming by Yahoo or its Affiliates, or (iii) any
other claim with respect to the Programming.
***
*** Portions of this Exhibit have been omitted based upon a request for
confidential treatment. The omitted material has been filed separately
with the Securities and Exchange Commission.
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penalties, judgments, awards, costs, expenses and disbursements,
including without limitation, the costs, expenses and disbursements, as
and when incurred, of investigating, preparing or defending any action,
suit, proceeding or investigation, caused by, relating to, based upon,
arising out of or in connection with any breach by Yahoo of the
representations or warranties made by it under this Agreement.
7. TERM AND TERMINATION:
(a) This Agreement shall be effective commencing April 1, 2000 and ending
March 31, 2001.
(b) Notwithstanding the foregoing, this Agreement may be terminated by
either Party immediately upon notice if the other Party: (i) becomes
insolvent; (ii) files a petition in bankruptcy; (iii) makes an
assignment for the benefit of its creditors; or (iv) breaches any of
its obligations under this Agreement in any material respect, which
breach is not remedied within thirty (30) days following written
notice to such Party.
(c) Yahoo may immediately cease the broadcast of any Programming should
Yahoo become aware of facts or circumstances from which it is apparent
that the transmission of such Programming by Yahoo as contemplated
herein infringes upon a copyright of a third party.
(d) Either Party shall have the right to terminate this Agreement for any
reason by providing sixty (60) days prior written notice of termination
to the other Party.
(e) Any termination pursuant to Paragraph 7(b) or 7(d) shall be without any
liability or obligation of the terminating party, other than with
respect to any breach of this Agreement prior to termination and
payment of any fees due hereunder. All provisions hereof regarding
amounts payable by Station to Yahoo shall survive the expiration or
termination of this Agreement until such amounts are paid in full by
Station; further provided, Paragraphs 1, 4, 5, 6, 8, 9, and this
Paragraph 7(e), and all portions of this Agreement limiting the use of
any confidential information, shall survive termination or expiration
of this Agreement.
8. OWNERSHIP:
(a) Yahoo acknowledges and agrees that: (i) as between Station on the one
hand, and Yahoo on the other, Station owns all right, title and
interest in the Station Brand Features; (ii) nothing in this Agreement
shall confer in Yahoo any right of ownership in the Station Brand
Features, and (iii) neither Yahoo or its Affiliates shall now or in the
future contest the validity of the Station Brand Features.
(b) Station acknowledges and agrees that: (i) as between Station on the one
hand, and Yahoo on the other, Yahoo owns all right, title and interest
in any Yahoo Property and the Yahoo Brand Features; (ii) nothing in
this Agreement shall confer in Station any license or right of
ownership in the Yahoo Brand Features; and (iii) Station shall not now
or in the future contest the validity of the Yahoo Brand Features.
9. GENERAL:
(a) This Agreement and its exhibits shall constitute the complete and
exclusive agreement between the Parties with respect to the subject
matter hereof, superseding and replacing any and all prior agreements,
communications and understandings, both written and oral, regarding
such subject matter.
(b) This Agreement shall be governed by and construed in accordance with
the laws of the state of California, without reference to conflicts of
laws rules, and without regard to its location of execution or
performance. The Parties agree that any disputes concerning the subject
matter of this Agreement must be filed in either the Superior Court for
the County of Santa Clara or the United States District Court for the
Northern District of California.
(c) If Yahoo develops and displays materials on the Yahoo Properties to
advertise the Programming, such materials may incorporate the materials
delivered from Station to Yahoo under this Agreement. Notwithstanding
anything in this Agreement to the contrary, Yahoo will have sole and
absolute discretion to determine all aspects of the Yahoo Properties,
including the content, structure and sequence of all material appearing
in the Yahoo Properties provided that in all such cases, Yahoo's uses
of materials delivered from Station are approved in advance by Station
in writing and are in compliance with Station's trademark usage
guidelines. Yahoo reserves the right to reject or remove any materials
from the Yahoo Properties for any reason at any time, regardless of any
prior acceptance, display or transmission of any such materials, and
Yahoo reserves the right to modify the Yahoo Properties in its sole
discretion at any time during the term of this Agreement.
(d) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, YAHOO DOES NOT MAKE,
AND HEREBY SPECIFICALLY DISCLAIMS, ANY OTHER REPRESENTATIONS OR
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES
PROVIDED HEREUNDER, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM
COURSE OF DEALING OR COURSE OF PERFORMANCE.
*** Portions of this Exhibit have been omitted based upon a request for
confidential treatment. The omitted material has been filed separately
with the Securities and Exchange Commission.
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(e) UNDER NO CIRCUMSTANCES SHALL YAHOO OR A YAHOO AFFILIATE BE LIABLE TO
STATION FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR
INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER
CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND EVEN
IF THAT 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. UNDER NO CIRCUMSTANCES SHALL YAHOO OR A YAHOO AFFILIATE BE
LIABLE TO STATION FOR ***.
(f) YAHOO SHALL NOT BE LIABLE FOR ANY LOSS OF DATA, OR ANY INTERRUPTION OF
SERVICE, DUE TO ANY CAUSE.
(g) The Parties hereto are independent parties, and no partnership, joint
venture, enterprise or employment relationship shall be created or
inferred by the existence or performance of this Agreement.
(h) If any provision of this Agreement is found invalid or unenforceable,
that provision will be enforced to the maximum extent permissible and
the other provisions of this Agreement will remain in force. This
Agreement may only be modified, or any rights under it waived, by a
written document executed by both Parties. This Agreement may be
executed in any number of counterparts, all of which taken together
shall constitute a single instrument. Execution and delivery of this
Agreement may be evidenced by a facsimile transmission. The headings of
this Agreement are for convenience of reference only, and do not limit
or alter the Parties' respective rights or obligations under this
Agreement. No failure of a Party to exercise or enforce any of its
rights under this Agreement will act as a waiver of such rights.
(i) This Agreement will bind and inure to the benefit of each Party's
permitted successors and assigns. Neither Party may assign this
Agreement, in whole or in part, without the other Party's written
consent; PROVIDED, HOWEVER, that either Party may assign this Agreement
without such consent in connection with any merger, consolidation, any
sale of all or substantially all of such Party's assets or any other
transaction in which more than fifty percent (50%) of such Party's
voting securities are transferred. Any attempt to assign this Agreement
other than in accordance with this provision shall be null and void.
(j) All notices, requests and other communications called for by this
Agreement shall be deemed to have been given immediately if made by
telecopy or electronic mail (confirmed by concurrent written notice
sent first class U.S. mail, postage prepaid), if to Yahoo at 2914
Taylor Street, Dallas, Texas 75226, Fax: *** Attention: Vice President
(e-mail: ***), with a copy to its Legal Department (e-mail: ***), and
if to Station at the physical and electronic mail addresses set forth
on the signature page of this Agreement, or to such other addresses as
a Party shall specify to the other Parties. Notice by any other means
shall be deemed made when actually received by the Party to which
notice is provided.
IN WITNESS WHEREOF, the Parties hereto have caused the foregoing agreement to be
signed by a duly authorized agent of each Party, the day and year first above
written.
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YAHOO! INC. STATION
By: /s/ Kevin W. Parke By:/s/ Anthony L. Escamilla
----------------------- --------------------------
Name: Kevin W. Parke Name: Anthony L. Escamilla
Title: Vice President Title: Executive Vice President
Address: 2914 Taylor Street Address: 71 Great Pasture Road
Dallas, TX 75226 Redding, CT 06896
Telephone: *** Telephone: ***
Telecopy: *** Telecopy: ***
Email: *** Email: ***
</TABLE>
*** Portions of this Exhibit have been omitted based upon a request for
confidential treatment. The omitted material has been filed separately
with the Securities and Exchange Commission.
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EXHIBIT A
DEFINITIONS
"ACCESS PAGE" shall mean the Web page(s) with Station Brand Features and
Yahoo Brand Features located at such URL(s) designated by Yahoo in its sole
discretion through which the Programming will be accessible.
"AFFILIATE" shall mean any company or any other entity world-wide in which
Yahoo owns at least a *** ownership, equity, or financial interest, including,
without limitation, corporations, partnerships, joint ventures, and limited
liability companies.
"INTELLECTUAL PROPERTY RIGHTS" shall mean all rights in and to trade
secrets, patents, copyrights, trademarks, know-how, as well as moral rights and
similar rights of any type under the laws of any governmental authority,
domestic or foreign.
"INTERNET" shall mean the collection of computer networks commonly known as
the Internet, and shall include, without limitation, the World Wide Web.
"MATERIALS" shall mean all text, graphics, Station Brand Features,
photographs, links and all other material provided by Station to Yahoo for
inclusion on the Access Page or elsewhere on the System.
"PROGRAMMING" shall include the audio and video of up to *** per day,
*** days per week of those broadcasts including all commercial and other breaks
which may be contained in such broadcasts of Station.
"STATION AFFILIATE" shall mean any company or any other entity world-wide in
which Station owns at least a *** ownership, equity, or financial interest,
including, without limitation, corporations, partnerships, joint ventures, and
limited liability companies.
"STATION BRAND FEATURES" shall mean all trademarks, service marks, logos and
other distinctive brand features of Station and Station Affiliates.
"SYSTEM" shall mean any wireless network (including, without limitation,
third generation networks (3G), direct broadcast satellites, microwave dish
facilitated data transmission, Vertical Blanking Interval (VBI), wireless cable
and data broadcasting, Teledesic, Iridium and other satellites, and any and all
other wireless networks) or wired network (including, without limitation, the
Internet, the Internet II, or any other online services network which utilizes
computer terminals, terminal servers, modems, cable modems, HFC, coaxial cable,
xDSL, routers, splitters, switches, multicasting technology, power lines, or
other high speed data connections and any and all other wired networks) that
distributes audio, video, or other programming using digital algorithms, one
and/or two-way digital services, or any other means now existing or hereafter
created (except AM/FM radio broadcast stations).
"YAHOO BRAND FEATURES" shall mean all trademarks, service marks, logos and
other distinctive brand features of Yahoo that are used in or relate to a Yahoo
Property.
"YAHOO PROPERTIES" shall mean any Yahoo or Yahoo Affiliate branded or
co-branded media properties developed in whole or in part by Yahoo or its
Affiliates and distributed or made available by Yahoo or its Affiliates.
*** Portions of this Exhibit have been omitted based upon a request for
confidential treatment. The omitted material has been filed separately
with the Securities and Exchange Commission.
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Exhibit B
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Content shall be in the form of ***
*** Portions of this Exhibit have been omitted based upon a request for
confidential treatment. The omitted material has been filed separately
with the Securities and Exchange Commission.
