Content Provider is acting on behalf of itself and its affiliates, and CMN, Inc. & E360TV, an OTT network (“E360TV”) a California corporation with its principal place of business at 1 League @60063, Irvine, California 92602.
WHEREAS, the parties desire to make material from Content Provider available to E360TV viewers and users, the parties agree as follows:
1.1 Responsibility for Content Development. Content Provider is providing E360TV with video programming (“Content”)
Content Provider, at its own expense, will produce the Content per E360TV’s specifications, unless otherwise agreed upon in writing.
1.2 Responsibility for Content Distribution. E360TV will make the Content available through the E360TV distribution network (which may include, but not be limited to, TV, Web, Film, and Mobile). E360TV will host the content. E360TV may make changes and engage in measures necessary to facilitate integration, trailers, and/or edit video descriptions, including but not limited to tracking tags, branding tags, bylines, or editorial elements that are included in the Content. In its sole discretion, E360TV may decline to distribute the Content, in whole or part, if E360TV determines in its sole discretion that it is unsuitable for viewing for any reason.
1.3 Video & Related Submission Requirements. Requirements for submission of video, digital media, supporting information, and related timelines shall be provided separately.
1.4 Promotional & Marketing Consideration. Within seven (7) days of submitting Content, Content Provider must deliver payment in the sum of zero ($0.00) Dollars and zero cents, per episode to E360TV for general promotional and marketing consideration.
2.1 Commercial Spots. E360TV may make available third-party commercial advertisements, sponsorships or promotional spots (collectively “Commercial Spots”) on websites only. Such Commercial Spots sold by E360TV shall be considered advertising revenue of which the Content Provider shall be entitled to zero percent (0%) of such advertising revenue generated from the insertion of Commercial Spots into the Content Provider’s Content.
2.2 Pay Per View. E360TV may make Content available for consumers to download with permission from content provider. In those cases, E360TV will charge consumers to watch such Content in which event the Content Provider will be compensated ninety percent (90%) of the total sale price, less any applicable taxes and transaction fees, generated from the insertion of downloadable content into Content Providers Content.
2.3 Engagement. Content Provider shall, in E360TV’s discretion, be required to engage with the marketing process through social media. E360TV may set specific reasonable requirements and deadlines for such engagement.
3.1 Joint Promotion. The parties will work together to develop a mutually agreeable plan for promoting the availability of Content on E360TV. The parties may issue a joint press release after signing of this Agreement subject to E360TV’s review and written approval of such release.
3.2 Content Provider’s Promotion Responsibilities.
a) Content Provider will provide E360TV with promotional opportunities including, at a minimum, promotion on Content Provider’s web site of the availability of Content on E360TV through a co-marketed plan, the specifics of which will be jointly planned by the parties, and subject to final written approval by E360TV;
b) Content Provider shall work with E360TV to develop a mutually agreeable plan for promoting the availability of Content on E360TV. The parties may issue a joint press release after signing this Agreement subject to E360TV’s review and written approval of such release; and
c) Content Provider shall provide E360TV with promotional opportunities including, at a minimum, promotion on Content Provider’s website of the availability of Content on E360TV through a co-marketed plan, the specifics of which will be jointly planned by the parties, and subject to final written approval by E360TV.
3.3 Use of Each Other’s Marks. Each party may use the other party’s trademarks, trade names service marks, logos and distinct brand elements (collectively “Marks”) in order to carry out the content promotion obligations set forth in this Agreement and subject to the terms and conditions of this Agreement. All uses by Content Provider of E360TV’s Marks will comply with E360TV’s Guidelines, as provided by E360TV.
This Agreement, together with the terms and conditions attached as Appendix “A”, will be the entire Agreement between the parties and may not be amended or modified, except if agreed to in writing and signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their respective duly authorized officers.
APPENDIX A
The following, additional terms and conditions will apply:
1.1 The term of this Agreement will be from the Effective Date for (3) three years (“Term”). At the end of the Term, the Agreement will continue on a quarterly basis (“Renewal Period”), unless terminated by either party by providing thirty (30) days prior written notice. The Renewal Period will be considered part of the Term for purposes of this Agreement.
1.2 If a party has materially breached its obligations under this Agreement and such breach is not cured within thirty (30) days after written notice from the non-breaching party, the non-breaching party may terminate this Agreement. In this event, termination of the Agreement will be in addition to, and not in lieu of, any equitable or legal remedies available to either party.
2.1 The terms and conditions of this Agreement are to be held in strict confidence by the parties hereto.
2.2 For purposes of this Agreement, “Confidential Information” shall mean any non-public or proprietary information of such party, including, without limitation, subscriber information, technical data, trade secrets, plans for products or services, software, or reporting, financial documents or data in whatever form or medium, or the terms and conditions of this Agreement. “Confidential Information” will not include any information that: (a) is in the public domain through no act or omission of the receiving party; (b) was in the receiving parties lawful possession without limitation on disclosure, as demonstrated by the files in existence at the time of disclosure; (c) becomes known to the receiving party from a source other than the disclosing party, which disclosure is not in violation of the disclosing party’s rights; or (d) was independently developed by the receiving party without any use of the Confidential Information, as demonstrated by files created as of the time of such independent development.
2.3 During the Term of this Agreement, parties may receive Confidential Information belonging to the other party (the “Disclosing Party”) and will not use such Confidential Information except as set forth in the Agreement. Each receiving party will disclose Confidential Information of the Disclosing Party only to its directors, officers, employees, and representatives who are required to have such information for the receiving party to carry out the transactions contemplated by this Agreement and who have been advised of the obligations. The receiving party may also disclose any Confidential Information that must be disclosed pursuant to applicable federal, state, or local law, court order or other legal process; provided that the receiving party makes reasonable efforts to give the disclosing party prompt written notice sufficient to allow the disclosing party to seek a protective order or other appropriate remedy. The receiving party will promptly notify the Disclosing Party of any actual or suspected misuse or unauthorized disclosure of the disclosing party’s Confidential Information.
2.4 The obligations of the parties under this Section will survive termination of the Agreement and will continue in full force and effect for two (2) years from the end of the Agreement. In addition, at no time during or after the term of this Agreement will either party disclose, sell or otherwise convey to any third party any data that specifically identifies users as users of the other party’s programs and services, either individually or as a group.
3.1 Licenses to Use Each Other’s Marks. Each party grants to the other a limited, non-exclusive, non-transferable (with no right to sub-license) license to use, reproduce, publish, display, distribute and transmit the other’s trademarks, marks and logos to carry out the promotion obligations set forth in this Agreement and solely in accordance with the terms and conditions of this Agreement. Notwithstanding the foregoing, each party will retain ownership of its own trademarks, marks, and logos. Each party will refrain from taking any action that could reasonably be anticipated to harm, prejudice or otherwise damage the reputation and goodwill associated with the other party’s marks. All uses of E360TV’s Marks will comply with E360TV’s Guidelines, as provided by E360TV.
3.2 License for E360TV to Distribute. Content Provider hereby grants E360TV the right to distribute, perform, display, reproduce and otherwise exploit and make available the Content submitted by Content Provider, as provided for under this Agreement.
4.1 As between the parties, each will own all intellectual property which it independently develops under the terms of this Agreement, and all rights in such intellectual property, including any enhancements or modifications.
4.2 In addition to the above, each party agrees to grant to the other only those rights and licenses necessary to allow for the use of its respective intellectual property, and only to the extent reasonably necessary to carry out its obligations under this Agreement.
5.1 Each party to this Agreement represents and warrants to the other party that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder, (b) its execution of this Agreement by such party and performance of its obligations hereunder do not violate any other agreement or obligation, and (c) when executed and delivered, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against it in accordance with its terms.
5.2 In addition, Content Provider represents and warrants that: (a) Content Provider owns the Content or has obtained all necessary licenses, permissions and consents required to license the Content to E360TV for the purposes of reproducing, distributing, displaying and downloading the Content as contemplated by the Agreement, including without limitation, privacy releases, publicity releases, musical composition licenses, sync licenses, compulsory licenses, artist consents and sound recording licenses; and (b) E360TV will not be responsible for any fees that are payable or become payable as a result of the reproduction, distribution, display or downloading of the Content as contemplated by the Agreement, including without limitation fees: (i) for any sound or video recording embodied in the Content; (ii) for any composition or underlying works embodied in any Content; (iii) for any sync license, mechanical license or compulsory license; (iv) to any third party pursuant to a union contract or collective bargaining agreement (including, without limitation, SAG, AFTRA or the Writer’s Guild); and (v) to any actor, writer, creator, composer, artist or artist affiliated entity.
5.3 WITH THE EXCEPTION OF ANY SPECIFIC WARRANTY MADE HEREIN, IN ANY APPENDIX, OR SOME OTHER WRITTEN AMENDMENT TO THIS AGREEMENT, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, INFORMATIONAL CONTENT, SYSTEMS, TITLE, INTEGRATION, NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT OR OTHERWISE, WITH REGARD TO ALL MATTERS ADDRESSED IN THIS AGREEMENT.
5.4 IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY ACTION ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INTENDED CONDUCT OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME OR GOODWILL, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR INDEMNITY OBLIGATIONS ARISING UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY’S LIABILITY FOR MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAYABLE BY ONE PARTY TO THE OTHER UNDER THIS AGREEMENT IN THE THREE MONTHS PRIOR TO THE DATE SUCH ALLEGED CLAIM AROSE.
5.5 NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INTERNET OR TELECOMMUNICATIONS FAILURE, COMPUTER VIRUS OR THIRD-PARTY INTERFERENCE BEYOND ITS REASONABLE CONTROL THAT MAY INTERRUPT OR DELAY ACCESS TO ANY INTERNET SITE OR CAUSE OTHER PROBLEMS OR LOSSES.
6.1 Indemnification by E360TV. E360TV agrees to indemnify, defend and hold harmless, Content Provider and Content Provider’s officers, directors, shareholders, employees, agents and affiliates, subsidiaries, successors and assigns, from and against any and all damages, liabilities, costs and expenses, including reasonable legal fees and expenses (together, the “Losses”) arising out of or related to any third-party claim that, if true, would constitute a breach of any of the representations, warranties or covenants of this Agreement by E360TV.
6.2 Indemnification by Content Provider. Content Provider agrees to indemnify, defend and hold harmless, E360TV & GLOBEXTV and its officers, directors, shareholders, employees, agents and affiliates, attorneys, subsidiaries, successors and assigns, from and against any and all Losses arising out of or related to any third-party claim that: (a) if true, would constitute a breach of any of the representations or warranties or other covenants of this Agreement by Content Provider, or (b) the Content as provided by Content Provider i) infringes an intellectual property right or licensing right of any third party or person, ii) violates any applicable law or regulation, including but not limited to laws regarding privacy and advertising, or iii) contains false or defamatory information or otherwise violates or dilutes the rights of any third party or person.
6.3 Conditions Precedent. Each party’s indemnification obligations hereunder will be conditioned upon (a) prompt written notice by the indemnified party to the indemnifying party of any claim, action or demand for which indemnity is claimed; (b) complete control of the defense and settlement thereof by the indemnifying party, provided that no settlement may be entered that limits the indemnified party’s rights hereunder without such party’s prior written consent; and (c) such reasonable cooperation by the indemnified party in the defense as the indemnifying party may request and at the indemnifying party’s expense.
6.4 Infringement Claim. If any element of Content is alleged or held to infringe the intellectual property rights or licensing rights of a third party, Content Provider will, at its own expense, and in addition to any of the foregoing: (a) procure the right to continue to use the allegedly infringing intellectual property or Content pursuant to the terms of this Agreement; (b) replace or modify the allegedly infringing intellectual property or Content to make it non-infringing; or (c) remove the allegedly infringing intellectual property or Content from the offerings set forth in this Agreement.
This Agreement shall be deemed entered, governed by, and construed in accordance with the laws of the State of California without regard to choice of laws principles thereof. Any disputes will be filed in the County of Orange, State of California, having jurisdiction thereof, and the parties hereby consent to the jurisdiction and venue of such courts for the resolution of disputes under this Agreement. Each of the parties hereto agrees that process may be served upon them in any manner authorized by the laws of the State of California for such persons and waives and covenants not to assert or plead any objections that they might otherwise have to such jurisdiction and to such process.
Neither party may assign any of its rights or obligations under this Agreement, in whole or in part, to any third party, without prior written consent of the other, unless such assignment occurs as the result of a sale of the assignor to a third party that is not the assignor’s parent company, and then, such assignment requires thirty (30) days written notice during which the party receiving the notice may terminate this Agreement upon thirty (30) days written notice to both the assignor and the assignee. Notwithstanding the foregoing, either party may assign this Agreement without consent of the other party upon thirty days’ prior written notice in the event of a merger or sale of the assignor to an entity that is the assignor’s parent company or is under common control with such party. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors, heirs and assigns.
Each party will comply with all laws and regulations applicable to its performance hereunder, including but not limited to all laws related to privacy and advertising.
No delay or omission by either party to exercise any right or power hereunder will impair such right or power or be construed to be a waiver thereof. A waiver by either party of any of the covenants to be performed by the other party, or any breach thereof, will not be construed to be a waiver of any prior or succeeding breach thereof or of any other covenant herein contained.
Any notice expressly required to be given hereunder will be in writing and delivered, via registered or certified mail, express courier, facsimile with confirmation, or confirmed email to the addresses set forth below or to such other locations, telephone numbers, and addresses as each of the parties hereto shall notify the other in writing from time to time. Notice will be deemed effective upon receipt.
For the Company:
E360tv 1 League @60063
Irvine, California 92602
Neither party will be liable for any delay or failure to perform its obligations hereunder, other than a payment obligation, due to any cause beyond its reasonable control including without limitation, acts of God or of the public enemy, including terrorists, acts of the Government in its sovereign capacity, fires, floods, epidemic, strikes, picketing or boycotts, or any other circumstances caused by natural occurrences or third party actions beyond the reasonable control and without the fault or negligence of the party whose performance is affected.
If any term, provision, covenant, or condition of this Agreement is held by a court or regulatory body of competent jurisdiction to be invalid, void, or unenforceable, the rest of the Agreement will remain in full force and effect, and will in no way be affected, impaired, or invalidated.
Notwithstanding anything to the contrary contained herein, the sections concerning Confidentiality, Ownership of Intellectual Property, Warranties and Limitation of Liabilities, Indemnification, Choice of Law and Venue, Severability, and any other sections that by their nature are intended to survive, will survive the expiration or earlier termination of this Agreement.
If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs, and expenses.
All amendments or modifications to the Agreement must be in writing signed by the party to be charged.
The parties waive any statutory or common law rule of construction that ambiguities should be construed against the drafter of this Agreement.
This Agreement will not be construed to create a joint venture, partnership or the relationship of principal and agent between the parties.
Titles and headings used in this Agreement have been inserted for convenience of reference only and are not to be considered a part hereof and will in no way define, modify or restrict the meaning or interpretation of the terms or provisions of this Agreement.
This Agreement may be executed in multiple counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument.