ALTAVISTA TECHNOLOGY, INC. ON-LINE DISTRIBUTION AGREEMENT
This on-lineAgreement ("Agreement") is entered into as of___April 24,1999 by
and between _____KC Audio with offices at Aptos Caalifornia ("Content
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Developer"), and AltaVista Technology, Inc. with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇.
▇▇▇▇▇ #▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇("▇▇▇").
Recitals:
Pursuant to an agreement between Content Developer and AVT, Content Developer
has created original content for Howdy Me-Mail plug-ins called "Howdios"
described in Exhibit A, which will also include any Exhibits and attachments
which Content Developer and AVT desire to distribute from the AltaVista
Technology, Inc. Web site.
Agreement : NOW, THEREFORE, in consideration of the premises, conditions,
covenants and warranties herein contained, the parties hereby agree to the
following:
1. DEFINITIONS
1.1 "Content" shall mean digital content such as images, audios, text,
poems, videos, animations, other items or any combination of the above that
the Content Developer shall deliver to AVT in accordance to the terms
of this agreement.
1.2 "Howdios" shall mean copies the content bundled with other content and
software from AVT or third party. Each Howdio is detailed in a Delivery
Schedule and attached to this agreement once approved by AVT as specified
herein.
1.3 "Net Revenue" shall mean the price of a Howdio as listed in each
attached Delivery Schedule.
1.4 "Territory" shall mean AVT's Internet Web page which is available
throughout the world.
1.5 "Deliverable Item" shall mean each of the content components,
materials, computer files or designs set forth in the relevant Delivery
Schedule that Content Developer shall deliver to AVT in accordance with this
Agreement.
1.6 "Deliverable Schedule" shall mean the schedule of Deliverable Items set
forth in Exhibit A.
2. PROPRIETARY RIGHTS AND GRANT OF LICENSE
2.1 All rights to the Content, including but not limited to the copyrights,
shall be the property of Content Developer.
2.2 Content Developer hereby grants to AVT, its successors and assigns,
subject to the terms set forth herein, the perpetual and exclusive right,
license and privilege throughout the Territory to :
2.2.1 produce, reproduce, manufacture, distribute, export, import, promote,
advertise, market, rent, sell and exploit the Content including derivative
works throughout the Territory;
2.2.2 translate the Content at into any non-English language, using
whatever means, developers, contractors or sub-licensees deemed appropriate
by AVT, and exercise the rights granted in Section 2.2.1 above in connection
with the translated versions of the Content. Any expense incurred by AVT in
the translating of the Content in to other languages shall be considered
additional Advance against royalties to be recouped by AVT from the first
dollar revenues of said translated content prio to the payment of royalties
to Content Developer. AVT shall own the copyright in any such translations;
2.2.3 publicly display or perform and/or authorize others to display and
perform the Content and any prototypes or demonstration versions of the
Content, or any part thereof, solely in connection with the advertising,
publicizing, marketing and distribution of the Content. Not withstanding
anything contained here in to the contrary, it is understood and agreed that
AVT retains exclusive rights to all content delivered during the life of
this agreement.
2.2.4 Sub-license others to exercise any of the rights set forth in sections
2.2.1 through 2.2.3 above.
3. ROYALTIES
3.1 ROYALTIES ON THE CONTENT. AVT shall pay or credit Content Developer
royalties as set forth in Exhibit A.
3.2 AVT will provide to Content Developer on a quarterly basis, within
forty-five (45) days after the end of each calendar quarter during which
the Content was sold, a written statement of royalties due to Content
Developer with respect to such Content. Such statement shall be accompanied
by a remittance of the amount due, if any. Content Developer shall have the
right, upon reasonable notice, but no more than once per calendar year, to
audit those records of AVT necessary to verify the royalties paid. Any such
audit will be conducted at Content Developers expense, by certified public
accountants, and at such times and in such a manner as to not unreasonably
interfere with AVT's normal operations and Content Developer and its auditor
shall be required to treat information revealed during the audit as
Confidential Information. Should deficiency be shown by such audit, AVT and
Content Developer shall immediately meet to resolve the conflict.
4. DEVELOPMENT AND APPROVAL PROCESS
4.1 Content Developer agrees to develop the Content in accordance with the
terms of this and to deliver the Content and the Deliverable Items to AVT
for approval, said approval to be at AVTs sole discretion , in a manner and
on the dates specified in Delivery Schedule.
4.2 No Deliverable Item shall be considered approved by AVT until Content
Developer has received written confirmation of such approval from AVT.
4.3 Upon receipt of the initial Content, AVT shall, within 15 business
day, provide Content Developer with either or written acceptance or a
written list of changes that must be made before AVT will accept the
Content.
4.4 If changes are required by AVT before AVT will accept the Content then
the steps outlined in Section 4.3 will be repeated until the Content is
accepted or until AVT terminates this Agreement or exercises its completion
rights. If Content Developer has not provided an acceptable Deliverable
Schedule Content Developer will have an additional 30 days to remedy the
situation. If Content Developer fails to provide an acceptable Deliverable
Item within the allocated extension, AVT, at its sole discretion, may
terminate this agreement and/or exercise its completion rights.
4.5 On or before the date on which the Content was originally due to be
delivered in accordance with the Delivery Schedule, Content Developer has
not provided an acceptable Deliverable Item within one (1) month of the date
such Deliverable Item was originally due in accordance with the Delivery
Schedule, AVT shall be entitled to terminate this agreement or exercise
its completion rights.
4.6 Content Developer shall be responsible for all development costs
associated with the Content, including but not limited to, the costs of any
fees payable for software or other licensing rights or acquiring services or
materials in connection with the Content. If any Deliverable Item contains
any non-original material, including music, poems images, pictures,
animations or text, Content Developer shall identify the material and the
owner or copyright holder thereof at the time of delivery of such
Deliverable Item, and Content Developer shall obtain, at Content Developer's
expense, all authorizations necessary to secure from the owner or copyright
holder of such material the rights for AVT granted in Section 2 above in
connection with such material without additional costs to AVT and without
restriction. In addition, Content Developer shall deliver to AVT along with
the Deliverable Item containing such material, all documentation
establishing, to AVT's satisfaction, Content Developer's and AVT's right to
use such material.
5. WARRANTIES, INDEMNIFICATION, AND REMEDIES
5.1 Content Developer represents, warrants and covenants that: it has full
right, power and authority to enter into this Agreement and to grant all
rights granted herein without violating any other agreement or commitment of
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any sort; that Content Developer has the requisite corporate authority to
enter into this Agreement and to enter into all transactions and grant all
rights contained in this Agreement; that it has no outstanding agreements or
understandings, written or oral, concerning the Content; that Content
Developer has not previously sold, licensed, encumbered or pledged the
Content or any portion thereof as security to any third party; the
Deliverable Items provided hereunder shall be original; and that the Content
does not and will not infringe or constitute a misappropriation of any
trademark, patent, copyright, trade secret or other proprietary, publicity,
or privacy right of any third party and AVT's use, reproduction, sale,
licensing and/or distribution of Content as provided in this Agreement shall
not violate any rights of any kind or nature of any third party.
5.2 Content Developer shall defend, indemnify and hold harmless AVT, its
successors, assigns, parents, subsidiaries, affiliates, licensees and
sublicensees, and their respective officers, directors, agents and
employees, from and against any action, suit, claim, damages, liability,
costs and expenses (including reasonable attorneys' fees), arising out of or
in any way connected with any breach of any representation or warranty
made by Content Developer herein or any claim that the Content infringes any
intellectual property rights or other rights of any third party. AVT shall
give Content Developer prompt notice of any such claim or of any threatened
claim and shall reasonably cooperate with Content Developer in the defense
thereof.
5.3 If AVT receives notice of any claim, demand or suit, or of any facts
which would lead a reasonable person to believe that there has been a breach
of Content Developer's representations or warranties as set forth herein,
AVT shall have the right to withhold from any payments due to Content
Developer under this Agreement reasonable amounts as security for Content
Developer's obligations hereunder, unless Content Developer posts other
security reasonably acceptable to AVT. Upon resolution of the claim, the
amount in escrow thereon shall be distributed to Content Developer after
deductions of any amounts required to be paid to AVT or third parties under
this indemnity.
5.4 AVT hereby represents, warrants and covenants that it has the full
right, power and authority to enter into this Agreement. AVT shall defend,
indemnify and hold harmless Content Developer, its successors, assigns,
parents, subsidiaries, affiliates, licensees and sublicensees, and their
respective officers, directors, agents and employees, from and against any
action, suit, claim, damages, liability, costs and expenses (including
reasonable attorneys' fees), arising out of or in any way connected with any
breach of any representation or warranty made by AVT herein. Content
Developer shall give AVT prompt notice of any such claim or of any
threatened claim, and shall reasonably cooperate in the defense thereof.
5.5 Neither Content Developer nor AVT shall agree to the settlement of any
such claim, demand or suit prior to final judgment therein without the
consent of the other party, whose consent shall not unreasonably be
withheld.
5.6 The parties' indemnification obligations set forth in the foregoing
sections shall survive termination of this Agreement.
6. TERM
6.1 This Agreement shall automatically renew without notice, 12 months
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from the effective date first set forth above, unless the parties have
mutually agreed in writing not to renew the agreement for an additional 12
month term, which agreement must be made in writing within 45 days of the
second anniversary of the agreement.
7. TERMINATION
7.1 This Agreement shall terminate upon the earlier of (a) the thirtieth
(30th) day after one party gives the other notice of a material breach by
the other of any term of this Agreement, unless the breach is cured before
that day, or (b) the thirtieth (30th) day after AVT gives Content Developer
notice of its intention to terminate the Agreement. In the event of a
material breach of this Agreement by Content Developer, AVT shall have the
right to suspend payment of royalties from the time AVT notifies Content
Developer of a breach until the time such breach is cured by Content
Developer.
7.2 This Agreement also may be terminated by AVT immediately upon notice
pursuant to the terms of Section 4.5 above.
8. ASSIGNMENT
8.1 This Agreement may not be assigned by Content Developer without the
prior written consent of AVT. AVT may assign this Agreement without
limitation. Subject to the foregoing, this Agreement will bind, and inure
to the benefit of, the parties and their respective successors and permitted
assigns.
9. FORCE MAJEURE
9.1 If the performance of this Agreement or any obligation under it (except
payment of monies due) is prevented, restricted or interfered with by reason
of acts of God, acts of government, or any other cause not within the
control of either party, the party so affected shall be excused from such
performance, but only for so long as and to the extent that such a force
prevents, restricts or interferes with that party's performance.
Notwithstanding the foregoing, the non-affected party may terminate this
Agreement immediately upon written notice if the force majeure circumstances
continue for more than sixty (60) days.
10. INTEGRATION
10.1 This Agreement, together with all Delivery Schedule attached hereto,
sets forth the entire agreement between the parties with respect to the
subject matter hereof, and may not be modified or amended except by written
agreement executed by each of the parties hereto.
11. GOVERNING LAW
11.1 This Agreement shall be governed by the laws of the State of
California applicable to agreements made and to be wholly performed therein
(without reference to conflict of laws). Content Developer hereby consents
to the jurisdiction of the state and federal courts having jurisdiction in
San Jose, California. In any action to enforce the terms of this Agreement,
the prevailing party shall be entitled to recover its reasonable attorneys'
fees and expenses.
12. INDEPENDENT CONTRACTOR
12.1 Content Developer shall be deemed to have the status of an independent
contractor, and nothing in this Agreement shall be deemed to place the
parties in the relationship of employer-employee, principal-agent, partners
or joint ventures. Content Developer shall be responsible for any
withholding taxes, payroll taxes, disability insurance payments,
unemployment taxes and other similar taxes or charges on the payments
received by Content Developer hereunder.
IN WITNESS WHEREOF, the parties have caused this Development Agreement to be
executed on the date set forth by their duly authorized representatives.
AltaVista Technology, Inc.
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Signature: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Signature:
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Name: Name:
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Title: Co-Owner K.C. Audio Title:
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Date: April 24, 1997 Date:
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EXHIBIT "A" DELIVERY SCHEDULE
Attached hereto and made part here of that certain on-line Distribution
Agreement by and between _________________ Content Developer and AltaVista
Technology, Inc. dated ____________.
Howdio Name: Friend 1
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Total Howdio Price: $_______
Content Percentage: _______%
Content Developer Royalty: $_______
Delivery Date: ________
Content Description & Specification:
Audios3
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ALTAVISTA TECHNOLOGY, INC.
Signature: s. ▇▇▇▇ ▇▇▇▇▇▇▇▇ Signature: s. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: Name:
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Title: President Title:
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Date: Date:
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Other Content Description :
Name Quantity Content Developer
1. _______________ ______ _______________
2. _______________ ______ _______________
3. _______________ ______ _______________
4. _______________ ______ _______________
5. _______________ ______ _______________
7. _______________ ______ _______________
8. _______________ ______ _______________
9. _______________ ______ _______________
10. _______________ ______ _______________
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