Ustream ©

1. Definitions. Unless otherwise specified, capitalized terms used in this Agreement will have the following meanings:

"Access Code" means a code generated by Ustream\'s systems that an end user must enter to log-in to an Event Page for Pay Per View access.

"Affiliate" means an entity that is controlled by or is under common control of a party.

"Branded Application" means the version of the Ustream Viewing Application branded with Broadcaster Materials pursuant to the terms of this Agreement.

"Broadcast Date and Time" means the date and time the live Event Content is scheduled to be made available via the Event Page, as set forth in the first page.

"Broadcaster Materials" means (i) all video and/or audio visual content (including the Event Content), data, text, visuals, graphics, artwork, photographs, communications, animation or other content or materials, including any updates thereto, provided by Broadcaster to Ustream or that Broadcaster uploads, transmits or provides on any Event Page, as may further be described in an Event SOW, including, without limitation, the name, voice, facsimile signature, photograph and likeness of Performer (ii) third party content which Broadcaster owns or to which it has the rights, and (iii) any content or links to third party websites or services. The Broadcaster Materials do not include End User Content.

"End User Content" means the video and/or audiovisual content, text, data, graphics, images, photos, chat, communications, hypertext links and any other content uploaded, transmitted or submitted by an end user via the Ustream Service.

"Event" means the performance or event described in the Cover Page.

"Event Content" means the live and/or recorded streamed audio visual content embodying the Event.

"Event Page" means the specific web page of the Ustream Site through which the Event Content is made available for access and viewing by end users, and the Promotional Page.

"Intellectual Property Rights" means patent rights, copyright rights, trademarks, moral rights, trade secret rights, know-how, rights of publicity and any other intellectual property or proprietary rights recognized in any country or jurisdiction in the world.

"Pay Per View" means the right purchased by an end user to access and view the Event Content via an Event Page at a designated time.

"Payment Processing Services" means the processing of payments, payment collection, handling of requests for refunds and other transaction related matters.

"Promotional Page" means the specific web page of the Ustream Site where Broadcaster may upload Broadcaster Materials for the advertising, marketing and promotion of an Event.

"Term" means the term of this Agreement, as provided in Section 8.1.

"Ustream Materials" has the meaning given in Section 7.1.

"Ustream Platform" means Ustream’s proprietary client and server based video player platform and technology, including the Ustream Software, the Ustream Viewing Application and the Ustream Materials.

"Ustream Professional Services" means the production services or other services Ustream may agree to perform as ordered by Broadcaster, subject to the completion and execution of a separate service work.

"Ustream Service" means any or all of Ustream\'s or Ustream\'s Affiliates properties, products, services, websites and content provided via the Internet, mobile, or other content delivery means, on any device capable of accessing or supporting the foregoing, whether presently existing or later developed, that are developed in whole or in part by or for Ustream or Ustream\'s Affiliates, including the Ustream Platform and the Ustream websites located at www.ustream.tv and www.ustream.com (collectively the "Ustream Site"), including any Event Page.

"Ustream Software" means Ustream’s proprietary APIs and any other software (and related documentation) provided to Broadcaster by Ustream to enable Broadcaster to use and access the Ustream Platform.

"Ustream Viewing Application" means the software application developed by Ustream for use on devices, computers and/or third party platforms as may further be described in an Event SOW, which enables end users to access and use the Ustream Service.

2. License.

2.1 License to Broadcaster: Subject to the terms of this Agreement, Ustream grants Broadcaster a non-exclusive, worldwide license to upload and transmit the Event Content through the Ustream Platform for the purpose of allowing users of the Ustream Services to view Event Content for personal use. The Event Content may be transmitted by Broadcaster to the users of Ustream Services via Pay Per View or video on demand (a recording of the Event Content available to the user on demand, referred herein as "VOD")

2.2 License to Ustream: Subject to the terms of this Agreement, Broadcaster grants to Ustream a fully paid, worldwide, royalty free, non-exclusive right and license to use, reproduce, distribute, perform, create derivative works, display, and transmit the Broadcaster Materials: (i) to make the Broadcaster Materials available on the Ustream Service (including but not limited to rebroadcasting the Event Content after the live version has aired via the Ustream Service); (ii) to provide the Ustream Professional Services; and (iii) to promote market and advertise the Event, the Event Content and the Ustream Service. Ustream has the sole right to market, advertise, promote, sell, license or otherwise distribute its, or any third party’s, products, services and advertisements, on or in conjunction with the Ustream Service (including embedding advertising in the Ustream players or within the Event Content stream); and Ustream will be entitled to retain any revenue generated thereby.

2.3 Restrictions: Broadcaster has no right to transfer, sublicense or otherwise distribute the Ustream Software to any third party. Except as expressly authorized in this Agreement, Broadcaster will not copy or modify the Ustream Platform, in whole or in part. Except as expressly authorized in this Agreement, Broadcaster will not lease, lend or rent the Ustream Platform, use the Ustream Platform to provide service bureau, time sharing, rental, application services provider, hosting or other computer services to third parties, or otherwise make the functionality of the Ustream Platform available to third parties. Broadcaster acknowledges that the Ustream Platform constitutes proprietary information and contains trade secrets of Ustream and its licensors, and, in order to protect such trade secrets and other interests that Ustream and its licensors may have in the Ustream Platform, Broadcaster agrees not to disassemble, decompile or reverse engineer the Ustream Platform nor permit any third party to do so, except to the extent such restrictions are prohibited by law. All rights and licenses not expressly granted in this Agreement are reserved.

3. Obligations.

3.1 Broadcaster has sole control and responsibility over all aspects of the Broadcaster Materials, and Ustream will have sole control and responsibility over the all aspects of the Ustream Services, if any. Broadcaster will provide all Broadcaster Materials in compliance with the restrictions set forth at Section 7(b), 7(e), 8 and 9 of the Ustream Terms of Service located at http://www.ustream.tv/terms, and the content upload restrictions located at Exhibit A.

3.2 Broadcaster agrees to use Ustream as its sole and exclusive provider of the live streaming services for the content described under "Exclusivity Content" on the Cover Page.

3.3 Broadcaster agrees to provide all reasonably necessary support and resources in order to meet the date and time the event(s) will be broadcasted.

3.4 Broadcaster agrees to use commercially reasonable efforts to include verbal attribution and favorable "mentions" of the Ustream Services within the Event Content presentation.

3.5 Broadcaster will not use the Ustream Platform to offer, display, distribute, transmit, route, provide connections to or store any Broadcaster Materials or any other material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party. In compliance with the safe harbor provision(s) of the Digital Millennium Copyright Act of 1998 ("DMCA"), and further to Broadcaster’s obligations in Section 3.2.3, Ustream reserves the right to take down any and all content posted via use of the Ustream Platform at any time in its sole discretion. Without limiting other provisions herein, Broadcaster will assist Ustream with any such compliance activities including that Broadcaster will immediately upon receipt of any claims of copyright infringement committed using the Ustream Platform ("Notices of Alleged Infringement") forward such notices to Ustream at copyright@ustream.tv.

3.6 Broadcaster acknowledges and agrees that its use of the Ustream Service is dependent upon access to telecommunications and Internet services. Broadcaster is solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Ustream Service, including, without limitation, any and all costs, fees, expenses and taxes of any kind related to the foregoing. Ustream is not responsible for any loss or corruption of data, lost communications or any other loss or damage of any kind arising from any such telecommunications and Internet services.

4. Access Codes

4.1 Access Codes: Broadcaster may request a specific number or unlimited number of Access Codes. Broadcaster must complete the appropriate section of the Cover Page to identify how many Access Codes will be available to the Event. Ustream will, within five (5) business days of receipt of the Cover Paget, either approve or reject the request and will communicate such approval or rejection to Broadcaster in writing to Ustream’s designated contact. Ustream reserves the right to withhold approval for any reason. If Ustream approves the request, Ustream will use commercially reasonable efforts to provide Broadcaster with the requested number of Access Codes in the format and schedule mutually agreed to by the parties. Ustream disclaims any and all liability with respect to any Payment Processing Services for an Event or the sale or distribution of Access Codes, engaged in by Broadcaster or its third party service providers.

5. Revenue Share and Payment

1. 5.1 In consideration of the rights granted hereunder, the parties will share revenue from Events as follows:
   1. (a) Net Pay Per View Revenue: Unless otherwise set forth in the applicable Cover Letter, all cash receipts actually received by Ustream from end users from the sale of Access Codes (either Pay Per View or VOD) to the Event Content, less fees owed to third parties from rights clearances, any bad debt and charge-backs, applicable sales tax, commissions or discounts allowed or paid to third parties, rebates and refunds to end users, transaction fees, processing fees and any applicable marketing, advertising, development and production costs ("Net Pay Per View Revenue") will be split as follows:
   2. (i) Fifty (50%) of Net Pay Per View Revenue to Broadcaster, and
   3. (ii) Fifty Percent (50%) of Net Pay Per View Revenue to Ustream.
2. 5.2 Payment: Unless otherwise set forth in the applicable Cover Letter, all revenue share fees due hereunder will be paid within thirty (30) days after the Event date, and all revenue share payments will include a report describing in reasonable detail the basis upon which payment was calculated, including all refunds and rebates to end-users. Ustream makes no guarantee or representation of any kind with respect to the amount of the revenue share fees payable to Broadcaster, and all fees received by Ustream are subject to the applicable sales taxes (as determined by the appropriate jurisdiction or territory). All refunds will be issued by Ustream (in its sole discretion) to any end user with or without any reason.

6. Billing:

6.1 Broadcaster agrees to pay the applicable fees ("Broadcast Fees") and any convenience and order processing fees (if any) at the prices then in effect at the time of Broadcaster’s purchase and Broadcaster hereby authorizes Ustream (or our third part service providers) to collect all such fees by charging the credit card or other payment method Broadcaster provides as part of its purchase information or otherwise, either directly or indirectly, including via a third party online payment service, such as PayPal. Broadcaster’s purchase transaction via the Site and Services may include sales tax based on the bill-to address and the sales tax rate in effect at the time your transaction is completed. Broadcaster will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with Broadcaster’s purchase of an Broadcast Fees and any related fees. All fees and applicable taxes, if any, are payable in United States dollars.

6.2 Broadcaster agree that the information that Broadcaster provide to us in connection with Broadcaster’s purchase of an Event Ticket, and at all other times will be true, accurate, current and complete and Broadcaster will not use false identities or impersonate any other person in connection therewith. Broadcaster authorizes Ustream, directly or through third parties, to make any inquiries Ustream considers necessary or appropriate to verify the information Broadcaster provides to Ustream related to the purchase or order of the Event , which may include providing your information to third parties

7. Intellectual Property Rights.

7.1 Ustream will retain all right, title, and interest in and to the Ustream Platform, the Ustream Site, and the Ustream Services worldwide including, but not limited to, ownership of all Intellectual Property Rights therein, but excluding the Broadcaster Materials therein or thereon.

7.2 Broadcaster will retain all right, title and interest in and to the Broadcaster Materials worldwide, including, but not limited to, ownership of all Intellectual Property Rights therein, but excluding the Ustream Platform, the Ustream Site, and the Ustream Service therein or thereon.

7.3 Broadcaster grants to Ustream a worldwide, royalty free, nonexclusive and non-transferable right and license to use and reproduce Broadcaster\'s Mark (defined below) solely as necessary to perform the obligations set forth in this Agreement and to perform the marketing activities set forth in this Section 7. "Mark" means a Broadcaster\'s trademarks, service marks, trade names and associated logos. Any use by Ustream of Broadcaster’s Mark must be in accordance with applicable law.

8. Term and Termination.

8.1 This Agreement begins on the Effective Date and continues for one (1) year after the Effective Date. Thereafter, this Agreement will automatically renew for successive one-year periods (each a "Renewal Term"), unless terminated by either party with or without any reason at any time immediately upon receipt of a notice from the terminating party. Broadcaster will be charged for all fees up until the termination date. The Initial Term and any Renewal Term(s) are collectively referred to herein as the "Term."

8.2 Sections 5-15 will survive any termination of this Agreement.

9. Confidentiality.

9.1 For the purposes of this Agreement, "Confidential Information" means information about the disclosing party\'s activities that is proprietary and confidential, which will include all business, financial, technical and other information of a party, and the terms and conditions of this Agreement.

9.2 Confidential Information will not include information that (a) is in or enters the public domain without breach of this Agreement, (b) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation or (c) the receiving party knew prior to receiving such information from the disclosing party or develops independently without use of the Confidential Information of the disclosing party.

9.3 Each party agrees (a) that it will not disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement and (b) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.

9.4 Notwithstanding the foregoing, each party may disclose Confidential Information (a) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, provided the recipient of the Confidential Information will have given the disclosing party, prior to making any disclosure, immediate notice of such a requirement to disclose or (b) on a "need-toknow" basis under an obligation of confidentiality to its legal counsel, accountants, banks and other financing sources and their advisors.

10. Representation and Warranties. Broadcaster represents, warrants and covenants that:

10.1 It has acquired and will comply with any and all licenses and approvals required for Broadcaster to perform its obligations and provide or distribute the Broadcaster Materials under this Agreement under applicable rules and regulations of any governmental entity or agency, that it has paid or will pay any necessary fees, costs or expenses associated therewith, and that it has made all disclosures required by such rules and regulations.

10.2 As of the Effective Date and continuing throughout the Term of the Agreement, the Broadcaster Materials does not and will not, infringe the rights of any third party, including without limitation any Intellectual Property Rights, rights of publicity, rights of personality, rights of privacy, rights to payment of royalties; or result in any tort, injury, damage or harm to any third party.

10.3 It has acquired any and all third party clearances, permissions and licenses which are necessary in connection with Ustream’s or its Affiliates\' exercise of any license granted them in Section 2.2, including, without limitation, the use of any names, likenesses 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.

10.4 The Broadcaster Materials will comply at all times with the content restrictions in Section 3.

10.5 Except as specified in this Agreement, neither party makes any warranty in connection with the subject matter of this Agreement and hereby disclaims any and all implied warranties, including all implied warranties of merchantability and fitness for a particular purpose regarding such subject matter.

11. Indemnification.

11.1 Broadcaster will indemnify, defend and hold harmless Ustream, its Affiliates, officers, directors, employees, consultants and agents from any and all third party claims, liability, damages or costs (including, but not limited to, reasonable attorneys’ fees) arising from its breach of any term, warranty, representation or covenant in this Agreement.

11.2 Ustream will indemnify, defend and hold harmless Broadcaster, its Affiliates, officers, directors, employees, consultants and agents from any and all third party claims, liability, damages or costs (including but not limited to, reasonable attorneys’ fees) arising from any claim that the Ustream Brand Marks and Ustream Platform violates or infringes any U.S. trademark, U.S. patent issued as of the Effective Date, U.S. copyright or misappropriates any trade secret enforceable in the U.S., and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Broadcaster.

11.3 The indemnified party will promptly notify the indemnifying party of any and all such claims and will reasonably cooperate with the indemnifying party with the defense or settlement thereof, which defense or settlement will be controlled by the indemnifying party, provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or prejudices or detrimentally impacts indemnified party in any way and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement will require the indemnified party’s written consent (not to be unreasonably withheld or delayed) and the indemnified party may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim.

11.4 If the ability of the indemnified party to exercise its rights or fulfill its obligations under Section 11.1 or 11.2 is enjoined, or if the indemnifying party reasonably determines that a claim in Section 11.1 or 11.2 is likely to be asserted, the indemnifying party will, at its option and expense, either: (a) procure for the indemnified party the right to use the material or service that is subject of the indemnification obligation under this Agreement; (b) replace such infringing or noncompliant material or service with non-infringing and compliant material or service; provided, that such non-infringing and compliant material or service will not materially adversely affect or limit the operation or functionality of the indemnifying party’s material or service; (c) modify the infringing or non-compliant material or service so that it is non-infringing and compliant; or (d) if none of the above options are reasonably available after commercially reasonable attempts by the indemnifying party to obtain such option, the indemnifying party may, at its option, terminate this Agreement.

12. Limitation Of Liability. Neither party will be liable to the other for any special, incidental or consequential damages, whether based on breach of contract, tort (including negligence) or otherwise, whether or not that party has been advised of the possibility of such damage. In no event will Ustream’s aggregate, cumulative liability to Broadcaster regarding any and all claims and causes of action, under any theory of liability, whether in contract, in tort (including negligence or strict liability) or otherwise, exceed U.S. $10,000.00.

13. Disclaimer.

13.1 Ustream: (i) is not responsible for the activities of end users of the Ustream Service; and (ii) has no ability to control the content that is uploaded, posted or transmitted using Ustream Service and does not have any obligation to monitor such content for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness or legality of the content (including without limitation anything said or written by end users of the Ustream Service) and hereby disclaims any and all liability relating thereto. Ustream will have no liability for: (i) any claims, losses or damage caused by errors or omissions in any content (including the Broadcaster Materials) or any other information provided to Ustream by Broadcaster in connection with the Services or any actions taken by Ustream at Broadcaster\'s direction; and (ii) any claims, losses or damages arising out of or in connection with Broadcaster\'s use of any third party products, services, software or websites that are accessed via links from within the Ustream Service or otherwise. THE USTREAM SERVICE AND USTREAM PLATFORM ARE PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS. USTREAM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. USTREAM DOES NOT WARRANT THAT (I) BROADCASTER’S USE OF THE SERVICES WILL MEET BROADCASTER’S REQUIREMENTS; OR (II) THE USTREAM SERVICE OR USTREAM PLATFORM WILL BE CONTINUOUS, UNINTERRUPTED OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.

14. Publicity. Ustream will have the right to market and promote the Event, and make any public announcement or press release about the Event. Any public announcement or press release by Broadcaster must be pre-approved by Ustream. Neither party shall make any disparaging or negative comments regarding the other party or its services or products.

15. General.

15.1 Assignment. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party; provided, however, that either party may assign or transfer this Agreement without such consent in connection with a merger, acquisition, or sale of all or substantially all of its assets or any similar such event.

15.2 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California. The parties consent to venue and the exclusive jurisdiction of the state and federal courts located in San Francisco, California.

15.3 Notice. Any notice under this Agreement will be in writing and delivered by personal delivery, express courier, confirmed facsimile, confirmed email or certified or registered mail, return receipt requested. Notices will be sent to a party at its address set forth on the first page or such other address as that party may specify in writing pursuant to this section.

15.4 No Agency. The parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency or joint venture.

15.5 Force Majeure. Except for payment, any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to, acts of nature, power outages and governmental restrictions.

15.6 Severability. In the event that any provision of this Agreement is held to be unenforceable by a court or arbitrator, the remaining portions of the Agreement will remain in full force and effect.