Exhibit 10.17
[Graphic]
ENTERTAINMENT BLVD., INC and
InterVU
Video Content Management & Delivery Services Agreement
The specifics of our agreement are outlined below:
Proposed Term
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The term will be for 12-months from date of signing.
1. InterVU to Offer:
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Applications and Services
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InterVU to provide, in a non-exclusive manner, the following
applications and services to ENTERTAINMENT BLVD., INC.:
Applications:
A) Audio/Video-on-Demand
Video-on-Demand entails a one-to-one unicast model, in which a viewer
selects those clips they wish to see or hear. Services involved in this
application include Web Site Integration and Content Management &
Delivery. ENTERTAINMENT BLVD., INC. may aggregate all of its properties
covered by this Agreement together to achieve the volume levels
required for discounted pricing for Content Management & Delivery services
(bandwidth). Pricing is hosted on MB of data transferred. Please see
addendum for specifics.
For Video-on-Demand, InterVU will provide content management (storage of
clips) for the term of this agreement. Clips will be placed on an archive
servers(s), with no significant performance reduction.
1. Services:
A. Production-Web Site Integration
Application Broadcast Services, Video-on-Demand
InterVU will work directly with a designated ENTERTAINMENT BLVD., INC.
web site producer to facilitate the inclusion of the video material into
each appropriate web page.
[LOGO]
ENTERTAINMENT BLVD., INC AND
INTERVU
VIDEO CONTENT MANAGEMENT & DELIVERY SERVICES AGREEMENT
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The specifics of our agreement are outlined below:
PROPOSED TERM
The term will be for 12-months from date of signing.
I. INTERVU TO OFFER:
APPLICATIONS AND SERVICES
InterVU to provide, in a non-exclusive manner, the following
applications and services to ENTERTAINMENT BLVD., INC.,
Applications:
A) Audio/Video-on-Demand
Video-on-Demand entails a one-to-one unicast model, in which a viewer
selects those clips they wish to see or hear. Services involved in this
application include Web Site Integration and Content Management &
Delivery. ENTERTAINMENT BLVD., INC. may aggregate all of its properties
covered by this agreement together to achieve the volume levels required
for discounted pricing for Content Management & Delivery services
(bandwidth). Pricing is based on MB of data transferred. Please see
addendum for specifics.
For Video-on-Demand, InterVU will provide content management (storage of
clips) for the term of this agreement. Clips will be placed on an
archive server(s), with no significant performance reduction.
1. Services:
A. Production--WebSite Integration
Applications: Broadcast Services, Video-on-Demand
InterVU will work directly with a designated ENTERTAINMENT BLVD., INC.
web site producer to facilitate the inclusion of the video material into
each appropriate web page
2. Content Management & Delivery
Applications: Broadcast Services, Audio/Video-on-Demand
InterVU will host and deliver ENTERTAINMENT BLVD., INC. content from the
InterVU Network, which consists of intelligently distributed video
delivery centers colocated across nine major backbone providers to
provide premium performance and unmatched scalability. By intelligently
managing the video distribution across these multiple backbones and ISP
networks, InterVU shall provide to ENTERTAINMENT BLVD., INC. many times
the amount of bandwidth and throughput to viewers than a single network
provider could provide alone.
PROMOTIONAL BENEFITS
ENTERTAINMENT BLVD., INC. BRANDING & TARGETED AUDIENCE BUILDING
As part of the relationship with ENTERTAINMENT BLVD., INC., InterVU
requires ENTERTAINMENT BLVD., INC. to provide InterVU's proprietary
multimedia manager through the Eye Q download button on the pages where
InterVU hosted content is found. This multimedia software provides
direct functional benefits to ENTERTAINMENT BLVD., INC. as well as to
the viewer.
Viewers want to download this free software because doing so installs
the player(s) necessary to see ENTERTAINMENT BLVD., INC. multimedia
content. Further, it will keep the viewer's player technology current by
notifying the viewer that a new version of the player is available, and
if prompted, will update that player.
ENTERTAINMENT BLVD., INC. TO PROVIDE:
INTERNET AND OTHER PROMOTION
During the term of this agreement, ENTERTAINMENT BLVD., INC. agrees to
provide "InterVU Enabled" branding or the "Eye Q download button" on all
associated multimedia pages in a mutually agreeable form.
ENTERTAINMENT BLVD., INC. agrees to provide an encoded feed and clips in
any acceptable format for Broadcast Services and Audio/Video-on-Demand
content originating from ENTERTAINMENT BLVD., INC., ENTERTAINMENT BLVD.,
INC. is also responsible for any costs in the production and
transmission to InterVU of such feed and clips.
ENTERTAINMENT BLVD., INC. also agrees to allow InterVU to link to those
ENTERTAINMENT BLVD., INC. properties served by InterVU. During the terms
of this agreement, InterVU shall be allowed to use ENTERTAINMENT BLVD.,
INC. property names to reproduce examples of work both on-line and
through CD-ROMs or other fixed media.
ELEMENTS OF INTERVU/ENTERTAINMENT BLVD., INC. AGREEMENT
FINANCIAL CONSIDERATIONS:
During the Term, the InterVU/ENTERTAINMENT BLVD., INC. Agreement will
consist of the following elements:
BROADCAST SERVICES AND AUDIO/VIDEO-ON-DEMAND
MONTHLY RECURRING
InterVU will provide a content management and delivery solution for
ENTERTAINMENT BLVD., INC. as described on page #2; ENTERTAINMENT BLVD.,
INC. is in turn responsible for the digitization and transmission of the
encoded material to InterVU. InterVU will provide monthly usage reports
for.
Content will be delivered from an archive server(s) on InterVU's
network. Pricing for these services will be per the attached pricing
addendum. (see attachment 1-2) AS AN INCENTIVE FOR ENTERTAINMENT BLVD.,
INC EXECUTING THIS CONTRACT PRIOR TO 2/10/99 INTERVU IS OFFERING A 25%
DISCOUNT OFF OF THE ATTACHED PRICE LIST WHEN USED IN CONJUNCTION WITH
THIS ONE YEAR AGREEMENT.
SETUP FEE
In addition, InterVU shall charge ENTERTAINMENT BLVD., INC. a $5,000
setup fee/deposit which shall be paid to InterVU prior to account
activation. This setup fee will be applied to ENTERTAINMENT BLVD.,
INC.'S 1 year contract.
IVU SERVICE AGREEMENTS:
IVU's standard terms and conditions are contained in Exhibit I attached
(the InterVU Service Agreement) which are included herein by reference.
AGREED AND ACCEPTED
To indicate your acceptance of the terms and conditions contained in
this Agreement, including the Addendum and Exhibit I, please sign in the
space provided below.
ACKNOWLEDGED AND AGREED
▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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InterVU (PRINT) ENTERTAINMENT BLVD., INC.
(PRINT)
▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 2-8-99
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InterVU (signature) Date ENTERTAINMENT BLVD., INC.
(signature) Date
[GRAPHIC]
INTERVU
Where the Web is moving Exhibit I
INTERVU SERVICE AGREEMENT
This agreement (the "Agreement") is by and between InterVU Inc. ("InterVU")
and Customer for the provision by InterVU of delivery for electronic video
content services as more particularly described below. The parties hereby
agree as follows:
1. INTERVU SERVICE DESCRIPTION. The InterVU service (the "Service") supports
dissemination of Customer's electronic audio/video content through
InterVU servers and the global Internet. Content may include multimedia
based advertisement, product information, announcements, news, or other
information or data, collectively called the "Content".
2. SERVICE COMMENCEMENT AND FEES. Service commencement shall be upon
InterVU's receipt of the completed InterVU Service Order Form ("Order
Form") and signed Agreement.
3. TERM/EXTENSION/TERMINATION.
A. INITIAL TERM AND EXTENSIONS. Service commencement shall be upon
InterVU's receipt of the completed InterVU Service Order Form and
shall last 3 months. This agreement is subject to month-to-month
automatic extensions following the initial three month period until
written notice of cancellation is provided to InterVU as provided in
3(B)(3) below.
B. TERMINATION.
(1) BY INTERVU FOR NON-PAYMENT. After forty-five (45) days of
non-payment from InterVU invoice due date, InterVU may terminate
this Agreement and the Service in InterVU's sole discretion. To
re-enable Service, repayment of the Service Start-Up charge will
be required and payment of any past due balances. Termination for
non-payment does not relieve Customer's responsibilities under
this Agreement, including but not limited to, its obligation to
pay fees up to the date of termination.
(2) BY INTERVU WITHOUT NOTICE. Should Customer's Content directly or
indirectly, actually or allegedly (1) violate any international,
United States, foreign, state, local or other applicable law,
regulation, rule or order of any applicable regulatory authority
or court of competent jurisdiction, (2) infringe or constitute the
unauthorized use of any patent right, copyright, trademark,
service ▇▇▇▇, trade name or other intellectual property right of
any third party, (3) constitute, be based on or involve the
misappropriation of any trade secret or other intellectual
property right of any third party, or (4) be for or involve any
defamatory, threatening or obscene purpose or in violation of any
community standard, then InterVU may terminate this Agreement and
the Service without notice to Customer, but provide a refund to
Customer for any unused Service fees.
(3) BY EITHER PARTY FOR CONVENIENCE. After the initial term of
Service, the term shall be month-to-month and either party may
terminate this Agreement and the Service for any reason upon
thirty (30) days prior written notice.
4. SERVICE USAGE RESTRICTIONS.
A. Customer hereby represents and warrants to InterVU, as of the date
of this Agreement, as of each date on which Customer continues and/or
adds new or modified Content to be hosted by use of the Service, and
as of each date on which the term of this Agreement is extended
pursuant to Section 3.A above, that neither the Content nor
Customer's use of the Service (1) violated any international, United
States, foreign, state, local or other applicable law, regulations,
rule or order of any applicable regulatory authority or court of
competent jurisdiction, (2) infringes or constitutes the unauthorized
use of any patent right, copyright, trademark, service ▇▇▇▇, trade
name or other intellectual property right of any third party, (3)
constitutes, is based on or involves the misappropriation of any
trade secret or other intellectual property right of any third
party, or (4) is used for or involves any defamatory, threatening or
obscene purpose.
B. Customer shall not use the Service, whether in general or with
respect to any particular Content, in any manner which directly or
indirectly would (1) violate any international, United States,
foreign, state, local or other applicable law, regulation, rule or
order of any applicable regulatory authority or court of competent
jurisdiction, (2) infringe or constitute the unauthorized use of any
patent right, copyright, trademark, service ▇▇▇▇, trade name or other
intellectual property right of any third party, (3) constitute, be
based on or involve the misappropriation of any trade secret or other
intellectual property right of any third party, or (4) be for or
involve any defamatory, threatening or obscene purpose.
5. SERVICE USAGE STATISTICS. Customer authorizes InterVU to distribute the
Customer's Service usage statistics to selected and approved recipient
without identifying Customer by name.
6. VIDEO GUIDE. Customer authorizes InterVU the right to list and link to
the Customer's Web Site from within InterVU's Content Developers Kit and
from within InterVU's "Video Guide" or any replacement and/or additional
section of its World Wide Web site. InterVU shall have the right to use
the name of Customer for InterVU's own promotional use or as required by
law.
7. CUSTOMER USE ONLY. This Service is for the Customer's global Internet
content offerings only. Customer shall not use the Service as a primary
business vehicle of reselling the InterVU Service. Co-Marketing
Value-Added Reseller Agreements are available for qualified candidates,
subject to the prior express written agreement of InterVU in its sole
discretion.
8. CONTENT PREPARATION AND MANAGEMENT.
A. Customer has full obligation and responsibility for preparation of
Content, including encoding of Content to digital formats as required
by the Service, except as otherwise agreed in writing.
B. Company has full obligation and responsibility for placement and
removal of Content hosted on InterVU video servers, except as
otherwise agreed in writing. InterVU shall provide Customer with all
necessary information, including InterVU video server IP addresses,
computer directory name, user account and password information,
regarding actions necessary to remove and add Content onto the
Service.
9. NO HISTORICAL ARCHIVAL OF CONTENT. While InterVU backs up its server
computers as a regular part of its internal systems administration, the
Service is for Content hosting and display. InterVU advises Customer that
it does not provide or gaurantee any storage or backup of Customer's
Content. Customer is responsible for providing any storage, backup and
archival history support with respect to its Content, whether created by
Customer or for Customer by a different party.
10. CUSTOMER INDEMNITY. Customer expressly acknowledges (1) that Customer is
solely responsible for the Content which it selects to be hosted by use of
the Service and for all claims, losses, liabilities, damages and expenses
that may relate in any manner whatsoever to the Content, and (2) that
InterVU is in no way responsible for such Content or for any claims,
losses, liabilities, damages and expenses that may relate in any manner
whatsoever to such Content. Customer shall defend, indemnify and hold
harmless InterVU and its subsidiaries, directors and employees, its
agents, shareholders and subcontractors, against any and all claims,
losses, liabilities, damages and expenses (including reasonable
attorneys' fees and costs) which it or they may suffer or incur in
connection with any actual or threatened claim, demand, action or other
proceeding by any third party (including any governmental authority)
arising from or relating to (1) any misrepresentation or breach of
warranty by Customer hereunder, (2) the breach by Customer of any
obligation hereunder, or (3) Customer's design, creation, provision or
use of information and technologies in their Content, including, but not
limited to, any related copyrights, trade secrets, trade names, patents,
intellectual property rights or obscenity laws in any country or
jurisdiction in which the Content can be viewed or retrieved.
11. WARRANTIES. INTERVU WARRANTS AND REPRESENTS THAT IT HAS THE RIGHT TO
ENTER INTO THIS AGREEMENT AND ITS EXECUTION WILL NOT INFRINGE UPON
RIGHTS OF ANY 3RD PARTY. INTERVU ALSO INDEMNIFIES CUSTOMER FOR SUCH
WARRANTY AND REPRESENTATION. CUSTOMER'S INDEMNITY OF INTERVU SHALL, IN
NO EVENT, EXCEED THE AGGREGATE FEES PAYABLE HEREUNDER TO INTERVU.
12. LIMITATION OF LIABILITY. THE LIABILITY OF INTERVU FOR ANY BREACH OF ITS
OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE RELATING TO THIS AGREEMENT
SHALL BE LIMITED TO THE AGGREGATE AMOUNTS ACTUALLY PAID BY CUSTOMER TO
INTERVU UNDER THIS AGREEMENT EXCEPT UNDER THE INDEMNITY PROVISION OF
SECTION 10 ABOVE. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES
ARISING OUT OF OR IN RELATION TO THIS AGREEMENT. EXCEPT FOR THE PAYMENT
OF ANY MONIES OWED UNDER THIS AGREEMENT, NEITHER PARTY SHALL BE HELD
LIABLE OR RESPONSIBLE TO THE OTHER PARTY, NOR BE DEEMED TO HAVE
DEFAULTED UNDER OR BREACHED THIS AGREEMENT, FOR FAILURE OR DELAY IN
FULFILLING OR PERFORMING ANY TERM OF THIS AGREEMENT TO THE EXTENT, AND
FOR SO LONG AS, SUCH FAILURE OR DELAY IS CAUSED BY OR RESULTS FROM
CAUSES BEYOND THE REASONABLE CONTROL OF THE AFFECTED PARTY INCLUDING BUT
NOT LIMITED TO FIRE, FLOODS, EMBARGOES, WAR, ACTS OF WAR (WHETHER WAR BE
DECLARED OR NOT), INSURRECTIONS, RIOTS, CIVIL COMMOTIONS, STRIKES,
LOCKOUTS, OR OTHER LABOR DISTURBANCES, ACTS OF GOD, ACTS, OMISSIONS OR
DELAYS IN ACTING BY ANY GOVERNMENTAL AUTHORITY OR THE OTHER PARTY. UNDER
NO CIRCUMSTANCES, SHALL EITHER PARTY BE LIABLE UNDER ANY THEORY OF
LIABILITY OR FOR ANY CLAIMS OR DAMAGES INCLUDING, WITHOUT LIMITATION,
INDIRECT, GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR
OTHER SIMILAR DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE ANY
PRODUCT, OR SERVICE PROVIDED HEREUNDER OR OTHERWISE RELATING TO THIS
AGREEMENT (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR ANY
OTHER PECUNIARY LOSS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
13. INTELLECTUAL PROPERTY RIGHTS. Except as otherwise provided in this
Agreement, under no circumstances shall a party, as a result of this
Agreement, obtain any ownership interest or other right in any patents,
pending patent applications, trade secrets, copyrights, trademarks,
tradenames or other intellectual property rights of the other party.
14. INDEPENDENT CONTRACTORS. The parties acknowledge that InterVU and
Customer are independent contractors, and that nothing in this Agreement
shall be construed to create a joint venture, partnership or agency
relationship between them.
15. NO ASSIGNMENT. Customer shall not assign, transfer or otherwise dispose
of this Agreement or any interest therein, whether voluntarily, by
operation of law or otherwise, except to an entity either wholly owned
by or which substantially or wholly owns Customer, without the prior
express written consent of InterVU. Customer shall give express written
notice to
InterVU of any permitted assignment, transfer for other disposition
and the permitted assignment or transfer shall expressly agree in writing
to be bound by the terms and conditions hereof. Any purported assignment
transfer or other disposition shall be void.
16. GENERAL TERMS . In the event of termination of Service hereunder for any
reason. Customers's obligations with respect to unpaid Service usage and
Section 5, the second sentence of 6, 10, 11, 12 and 13 shall survive
this Agreement. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law, the remaining provisions of
this Agreement will remain in full force and effect. This Agreement
represents the complete agreement and understanding of this portion, with
respect to the subject matter herein, and supersedes any other
representation, agreement or understanding, written or oral. In the event
of any conflict arising between Customer's purchase under terms and this
Agreement, this Agreement shall take precedence. This agreement may be
modified only in writing, signed by both parties. This Agreement shall
be governed by and construed in accordance with the Laws of the State
of California, without regard to the conflicts of law principles thereof.
Any action must be brought in the courts of New York or California.
The parties represent and warrant that they have full corporate power and
authority to execute and deliver this Agreement and to perform their
obligations hereunder, and that the person whose signature appears below is
duly authorized to enter into this Agreement on behalf of the party of whom
they represent. Each party also represents and warrents that this Agreement
is a valid binding and uneforceable agreement against it in accordance with
its terms.
In Witness Whereof, the Parties have entered into this Agreement:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇, CEO
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ENTERTAINMENT BLVD., INC. Representative Title (Print)
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇, CEO 2-8-99
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ENTERTAINMENT BLVD., INC. Representative Title (Signature) Date
/s/ ▇▇ ▇▇▇▇▇▇
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InterVU Representative (Print)
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 2-23-99
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InterVU Representative (Signature) Date
[LOGO] VOD PRICING AND PACKAGING
INTERVU
The Video Delivery Company
ENCODING
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Netshow, RealAudio and Video, Quicktime, MPEG or AVI
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0 to 3 minutes $100 for the 1st clip (including set up fee)
each add'l clip $ 50
each add'l minute $ 10
each add'l format $ 4
each add'l rate $ 4
JPEG
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1 to 3 images $100 per job (including set up)
each add'l image $ 40
VOD DELIVERY For clips less than 3 minutes
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Premium: $5000 per month, including set up and administration costs and:
50,000 viewers @ 28.8kbps or 25,000 viewers @ 56kbps
$1 per subsequent viewer
WEBSITE INTEGRATION
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Standard: Includes HTML integration, Java scripting, embed or spawning
statements to enable website to meet InterVU spec.
Up to 5 hrs. $1000 per job (including set up)
each add'l hour $ 150
Premium: Includes Standard plus splash page design (w/o hosting).
Minimum fee $3000 per job (including set up)
each add'l hour $ 150
STORAGE
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First 50MB N/C
Each Additional 1GB $250 per Month for Each Distribution Location.
Please call your InterVU representative for clips longer than 3 minutes in
length or for greater volume and/or greater bandwidth considerations.
[LOGO] LIVE BROADCAST PRICING AND
PACKAGING
INTERVU
The Video Delivery Company
BROADCAST DELIVERY ONLY - AUDIO AND VIDEO
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Basic: $1,000 for set up and administration per 0 to 2 hour event.
$2,000 for set up and administration per 2 to 6 hour event.
$3,000 for set up and administration per 6 to 10 hour event.
Includes up to 100 simultaneous viewers @ 28.8kbps or 50
simultaneous viewers @ 56kbps
Standard: $2,000 for set up and administration per 0 to 2 hour event.
$4,000 for set up and administration per 2 to 6 hour event.
$6,000 for set up and administration per 6 to 10 hour event.
Includes up to 1,000 simultaneous viewers @ 28.8kbps or 500
simultaneous viewers @ 56kbps
Premium: $ 4,000 for set up and administration per 0 to 2 hour event.
$ 8,000 for set up and administration per 2 to 6 hour event.
$12,000 for set up and administration per 6 to 10 hour event.
Includes up to 5,000 simultaneous viewers @ 28.8kbps or 2,500
simultaneous viewers @ 56kbps
Please call your InterVU representative for broadcast events not specified
here.