TERMS & CONDITIONS
This Content License Agreement (“License Agreement”) dated as indicated above is entered into by Licensor identified above (“Licensor”) and Everybody Digital, LLC, a Delaware limited liability company (“Everybody Digital”), and sets forth the terms and conditions between the Parties in connection with the license of certain audio-visual content as described in Exhibit A hereto (the “Licensed Content”) for broadcast and/or distribution by Everybody Digital. For good and valuable consideration, the receipt of which is hereby acknowledged by the parties:
1. Grant of Rights: Licensor grants Everybody Digital a non-exclusive Universal right and license to reproduce, distribute, broadcast, exhibit, perform, display, and otherwise exploit the Licensed Content in any and all markets via streaming mobile by any and all media, methods, means, or applications, as may be now known or hereafter devised, as Everybody Digital shall determine in its sole discretion, including the right to sub-license the Licensed Content to third parties to exploit likewise. Without limiting any of the foregoing, Licensor hereby further grants to Everybody Digital an exclusive Universal right and license, during the Term, to: (a) create clips of the Licensed Content; (b) promote the Licensed Content; (c) use, display, and reproduce Licensor’s logos, trade names, trademarks, and service marks in any media; (d) embed Everybody Digital’s name and logo in the Licensed Content; (e) utilize Promotional Materials (defined below) and any metadata associated with the Licensed Content, in connection with the display, distribution, and promotion of the Licensed Content. “Promotional Materials” shall mean any promotional materials, including clips, stills, and thumbnail images, made available by Licensor to Everybody Digital (or as may be generated by Everybody Digital) for the purpose of promoting the Licensed Content. The license granted hereby includes the grant, assignment, or waiver (as may be appropriate) of Licensor’s moral rights (aka droit morale) in the Licensed Content to the fullest extent allowable by law and as necessary for Everybody Digital to exercise all of its rights hereunder in order to fully exploit the Licensed Content without restriction. The territory of this License Agreement is the Universe.
2. Display Obligations: Everybody Digital shall have the sole right to determine if, when, where, and on which basis all or any of the Licensed Content is reproduced, distributed, performed, broadcast, displayed, and otherwise exploited, including the packaging and programming related thereto. Everybody Digital may elect not to reproduce, distribute, perform, or display any or all of the Licensed Content for any reason, including as a result of a determination by Everybody Digital that any of the Licensed Content may be the subject of a legal issue or claim, or is otherwise inconsistent with Everybody Digital’s brand, standards, or practices. Further, Everybody Digital makes no guarantees about the extent or success of any exploitation of the Licensed Material.
3. Revenue Sharing: Everybody Digital shall pay Licensor Fifty Percent (50%) of Everybody Digital’s Net Revenues (defined below) within ninety (90) days after the end of each of Everybody Digital’s accounting quarters during the Term. The payment to the Licensor may be withheld until the following quarter if the total amount of all license fees payable does not exceed One Hundred & Fifty Dollars ($150.00). For the purposes hereof, “Net Revenues” shall mean only those billed revenues received by Everybody Digital that were directly earned from the exploitation of the Licensed Content, less all of Everybody Digital’s direct costs related to the Licensed Content, which direct costs include, but are not limited to: (a) any taxes or similar fees owed with respect to such revenue; (b) any digitization, closed captioning, or other similar fees or costs associated with preparing the Licensed Content to prepare the video content for distribution; (c) license fees, if any, paid to Broadcast Music Inc. (“BMI”), the American Society of Composers, Authors and Publishers (“ASCAP”), SESAC, Inc (“SESAC”), or any other third party attributable to Everybody Digital’s acquisition of the rights to publicly perform the musical compositions in the Licensed Content; (d) proportionate costs of distribution and portal maintenance; and (e) marketing and promotional expenses.
4. Delivery: Licensor shall deliver at its expense: (a) the Licensed Content according to such technical and documentary specifications as Everybody Digital shall indicate to Licensor (which delivery elements shall include, without limitation, closed captioning and producers errors & omissions insurance); and (ii) any Promotional Materials associated with the Licensed Content.
5. Term: This License Agreement shall be effective as of the date first set forth above and shall continue for a period of Two (2) Years from the date of Licensor’s complete delivery of the Licensed Content (“Initial Term”). The Initial Term will automatically renew for a period of Two (2) Years (“Renewal Term”). Either party may terminate this License Agreement at the conclusion of the Initial Term by providing written notice to the other party thirty (30) days prior to the end of the Initial Term. Everybody Digital may terminate this License Agreement in the event of a material breach by Licensor if Licensor has not cured such breach with thirty (30) days following receipt by Licensor of written notice describing such breach. The expiration of the Term or other termination of this License Agreement shall not limit or otherwise affect the term or duration of any sub-distribution or other license agreements entered into by Everybody Digital with third parties, if any, all of which shall continue in full force and effect during their respective terms, even if such extend beyond the Term and notwithstanding the expiration of the Term or other termination hereof.
6. Representations and Warranties: Licensor hereby represents and warrants to Everybody Digital that: (a) Licensor: (i) has all rights necessary to grant to Everybody Digital the rights granted by Licensor in this License Agreement; (ii) will not grant or enter into any liens, restrictions or agreements that may diminish or impair any of the rights or licenses granted to Everybody Digital; (iii) has the power and authority to enter into, and perform Licensor’s obligations under this License Agreement; and (iv) is under no obligation, contractual or otherwise, which might in any way interfere with its full and complete performance of the License Agreement; (b) the Licensed Content, Promotional Materials, Licensor’s marks, and metadata supplied by Licensor, when used in accordance with the terms of this License Agreement, do not and will not violate or infringe upon any law or any right of any third party; (c) With respect to each musical composition in the Licensed Content, the musical performance rights are: (i) controlled by BMI, ASCAP, or SESAC, or a comparable appropriate non-U.S. performing rights society; (ii) owned by or licensed to the Licensor so that no additional clearance of, or payment with respect to, such rights is required by Everybody Digital for the exercise of the rights licensed to Everybody Digital hereunder; or (iii) is in the public domain; and (d) Licensor is responsible for any residual payments required by associations or unions including, but not limited to SAG-AFTRA, DGA and WGA, and Everybody Digital will assume no such obligations.
7. Indemnification: Each Party agrees at all times to indemnify, defend, and hold harmless the other Party, and its affiliates, and each of their respective directors, employees, agents, and representatives from any and all claims, actions, judgments, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees and costs arising out of or related to any third party claim resulting from any breach or alleged breach by the indemnifying Party of any representation, warranty, or covenant set forth in this License Agreement.
8. Force Majeure: Everybody Digital may suspend the Term and its obligations to Licensor pursuant to this License Agreement in the event of and for the full duration of any force majeure event. A force majeure event shall include any labor dispute, fire, war or governmental action, and any other unexpected or disruptive event beyond Everybody Digital’s control that hampers or prevents Everybody Digital ability to exploit the Licensed Content or otherwise fulfill its obligations pursuant to this License Agreement.
9. Notices & Payments: Any notices or payments required by this License Agreement may be delivered in person, or sent by U.S. mail with proof of receipt, or courier that provides proof of delivery and receipt, addressed to the party at the address stated in this License Agreement, and shall be deemed to have been received when delivered.
10. Remedies: No breach of this Agreement shall entitle Licensor to terminate or rescind the rights granted to Everybody Digital herein, and Licensor hereby waives the right, in the event of any such breach, to equitable relief or to enjoin, restrain or interfere with the production, distribution, exploitation, exhibition or use of any of the rights granted to Everybody Digital or the Licensed Content, it being Licensor’s understanding that Licensor’s sole remedy shall be the right to recover actual monetary damages with respect to any such breach.
11. Assignment: This License Agreement may not be assigned by Licensor without the prior written consent of Everybody Digital. Everybody Digital shall have the full right to assign this License Agreement (and any of its rights and obligations hereunder) at its sole discretion, to any person, firm or corporation, and such assignment shall constitute a novation and Everybody Digital shall be released and discharged of and from any and all duties, obligations, and liabilities arising under this License Agreement. Licensor may not assign this Agreement without the prior express written consent of Company.
12. Governing Law; Jurisdiction: This License Agreement shall be governed by the laws of the State of California without regard to conflicts of laws principles. Each of the Parties irrevocably consents to exclusive personal jurisdiction and venue in federal and state courts located in Los Angeles County for any action or proceeding arising out of or relating to this License Agreement and each irrevocably waives the defense of an inconvenient forum to the maintenance of any such action or proceeding.
13. Miscellaneous: This License Agreement, together with all exhibits referenced herein and attached hereto, embodies the entire and exclusive understanding of the Parties with respect to the subject matter hereof, constitutes a binding agreement of the Parties upon the execution hereof, and supersedes all prior written or oral commitments, arrangements, or understandings with respect thereto. No change, amendment, or modification of any provision of this License Agreement shall be valid unless set forth in a written instrument signed by the Party subject to enforcement thereof. The Parties are independent contractors, and this License Agreement does not create an agency, partnership, or joint venture. This License Agreement may be executed in counterparts, each of which will be deemed an original an all of which together constitute one agreement. Signatures delivered via facsimile or other electronic delivery shall be deemed effective as if original signatures.
IN WITNESS HEREOF, the Parties, intending to be bound hereby, have agreed to the terms and conditions of this License Agreement as of the date first set forth above.