Catalog License Agreement - Pleasure Productions Inc, Pleasure Licensing LLC and Colorado Satellite Broadcasting Inc.
CATALOG LICENSE AGREEMENT
This License Agreement (the "Agreement") is made and entered into this
12th, day of June 2003, by and between: Pleasure Productions, Inc. and Pleasure
Licensing, LLC, 59 Lake Drive, Hightstown, NJ 08520 (individually and
collectively "Licensor") and COLORADO SATELLITE BROADCASTING, INC., 7007
Winchester Circle, Suite 200, Boulder, CO 80301 ("CSB" or "Licensee") with
reference to the following facts and circumstances:
WHEREAS, Licensor owns or otherwise controls certain rights to certain
motion pictures intended for viewing by adult audiences, a list of which such
motion pictures is attached hereto as Exhibit "A" and incorporated herein by
this reference.
WHEREAS, Licensee performs, displays and broadcasts motion pictures
and other content intended for viewing by adult audiences; and
WHEREAS, Licensee desires to obtain from Licensor, and Licensor
desires to grant to Licensee, the right to publicly perform, display and
broadcast up to two thousand (2,000) of said motion pictures to be selected by
Licensee from those listed on Exhibit "A", subject to the terms and conditions
set forth herein, it being understood that a list of the motion pictures
selected by Licensee shall be attached hereto as Exhibit "B" once such
selections have been made by Licensee.
NOW, THEREFORE, in consideration of the promises and mutual covenants
and agreements set forth herein, the parties agree as follows:
1. DEFINITIONS
As used in this Agreement, certain capitalized terms not otherwise
defined in the body of the Agreement shall have the following meanings:
1.01 "Cable Systems" means systems by which Content is delivered to
addressable subscribers for display on television receivers or video monitors
located in Private Dwellings by Satellite Master Antenna Television system,
Multipoint Distribution system, Multichannel Multipoint Distribution system,
Local to Multipoint Distribution system, and Open Video System (as all such
terms are commonly utilized in the industry or defined herein) now known or
hereafter created or discovered, whether such Content is provided at some times,
at all times, or upon demand, for free or for consideration, and regardless of
the billing or payment method (if any) used.
1 .02 "Content" means text, graphics, photographs, video, audio and/or
other data or information contained in, identified as or related to a Title.
1 .03 "Documentation" means (i) any and all documentation required by
U.S. law or regulation, including without limitation copies of photo
identification reflecting the age of each individual appearing in each Title at
the time of production to the extent required by law, and all related
documentation required by 18 U.S.C. ss.2257 and 28 C.F.R., Part 75, as amended
from time to time; (ii) all chain-of-title documentation, including without
limitation Certificates of Registration of Copyright and license agreements, in
Licensor's possession or control; and (iii) talent releases containing all
customary consents, representations, and waivers (including without limitation
waivers of claims based on rights of privacy, publicity, and false light) signed
by each individual appearing in each Title, in Licensor's possession or control.
For purposes of delivery of Documentation to Licensee hereunder, Licensee shall
not require Licensor to deliver the chain of title documents set forth above in
this section 1.03 (ii) unless (x) Licensee, in its good faith business judgment,
determines that such chain of title documents are necessary or desirable in
order for Licensee to comply with any law or regulation, for use in connection
with any actual or threatened regulatory action or inquiry, or lawsuit or
inquiry of a customer or (y) in the event Licensee makes a reasonable request
(other than in the situations set forth in clause (x) above) for such chain of
title documents and Licensor consents to deliver such documents, which consent
shall not be unreasonably withheld. Licensor acknowledges that if such request
is made in connection with a Change of Control (as defined in Section 16 hereof)
such request by Licensee shall be deemed reasonable.
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1 .04 "Download" means to copy data from a source to a peripheral
device.
1.05 "Dub" means the best quality version of a Title that is
available to Licensor in the format set forth on Exhibit "A" hereto for such
Title or a first generation copy of such version.
1 .06 "Exhibit" or "Exhibition" means to publicly perform, display,
broadcast cm transmit Content.
1 .07 "Internet" means the global network of interconnected computer
networks utilizing the Transmission Control Protocol/Internet Protocol (TCP/IP),
and/or such other standard network interconnection protocol(s) as may be adopted
from time to time, to transmit Content to a computer or other digital electronic
device for display to an end user, whether such Content is delivered through
online browsers, offline browsers, "push" technology, "on demand" technology,
electronic mail, streaming media, satellite, wireless or cellular device, cable,
or otherwise, and including without limitation Content provided to end users for
free or for consideration; at some times, all times or upon demand; and
regardless of the billing or payment method (if any) used. Delivery of Content
via the "Internet" shall also mean and refer to Content delivered to and
displayed on devices or computers, whether hand-held or portable or not,
utilizing extensible markup language (XML).
1 .08 "Person" means any natural person, legal entity, or other
organized group of persons or entities. (All pronouns, whether personal or
impersonal, which refer to Persons, include natural persons and other Persons.)
1 .09 "Private Dwellings" means: (i) residential dwellings (including
but not limited to houses, private residential apartments, cooperatives,
condominiums, and mobile homes); (ii) individual private rooms and bars and
lounges in hotels and motels, inns and lodges and other venues; and (iii) other
locations and institutions not accessible to the general public such as
corporations, firms, penal institutions, oil rigs, military bases, ships,
dormitories, fraternity and sorority houses, hospitals, nursing and convalescent
homes, schools and libraries.
1.10 "Satellite Systems" means systems by which Content is delivered
via satellite transmission for display on television receivers or video monitors
located in Private Dwellings, including without limitation Content delivered by
or through Digital Broadcast Satellite systems, C-Band Satellite Direct to Home
systems (as all such terms are commonly used in the industry) now known or
hereafter created or discovered, and scrambled low power television stations.
1.11 "Stand Alone Systems" means systems whereby Content is delivered
to a system operator on tape or other technology, and the tape or other
technology now known or hereafter created and is inserted in a playback system
at the system headend for delivery or otherwise delivered over a closed network
utilizing fiber optic, twisted pair, coaxial cable and/or other technology for
display on television receivers or video monitors located in Private Dwellings.
1.12 "Still Images" means images relating to a Title contained in the
following media or medium which Licensor possesses or creates during the Term
hereof: negatives, prints, transparencies, slides, chromes, and digital images
in any and all formats (including, without limitation, VHS, DVD and/or any other
technical formats) and/or transfer protocols now known or hereafter created or
discovered, depicting, or promoting a Title and any Persons appearing in a Title
whether such images are actually depicted in a Title or created separately for
the purposes of advertising and/or publicizing a Title.
1.13 "Term" means the term specified in paragraph 3.01 below and any
extensions agreed to by the parties hereto in accordance with the terms hereof.
1.14 "Title" means each motion picture or motion picture segment of
any length listed or otherwise identified with reasonable particularity in
Exhibit "B" which will be attached hereto and o incorporated herein by this
reference, including all Versions of each such Title existing as of the date
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hereof and any Versions created by Licensee hereunder that do not include any
material or content not contained in any Title, Version existing as of the date
hereof or otherwise provided by Licensor to Licensee pursuant to this Agreement.
1.15 As to each Title, "Territory" means all countries in North
America, Central America and South America including the respective territories,
possessions, and commonwealths of all such countries, except with respect to the
exercise of the Rights in connection with the Internet, in which case
"Territory" shall refer to the entire universe.
1.16 "Version" means any version of a Title existing as of the date
hereof and/or which is created by Licensee from a Dub, including but not limited
to the following:
A. X Version: traditionally referred to a "soft cable master";
contains no explicit sex material, male erections or close-ups of male and/or
female genitalia,
B. XX Version: shows male erections and/or close-ups of male
and/or female genitalia but no extreme close-ups, anal penetration and/or
ejaculations, and
C. XXX Version: the least-edited or unedited standard, including
extreme close-ups, anal penetration and ejaculation.
1.17 "Video on Demand (VOD)" shall mean the Exhibition delivered by
all means know known or hereafter discovered including but not limited to the
Internet, Satellite Systems, Cable Systems and/or Stand Alone Systems capable of
video storage which in turn enables Subscribers to manipulate the Exhibition of
Titles at the Subscriber's discretion including but not limited to pausing,
reversing, forwarding and stopping the Exhibition.
2. GRANT OF RIGHTS
2.01 For each Title, Licensor hereby grants to Licensee, in the
Territory during the License Period (as defined below) and subject to the terms
and conditions contained herein:
(a) The exclusive right and license, in the United
States, and its territories, possessions and
commonwealths to Exhibit the Title and/or any
excerpts therefrom or Versions thereof (whether
existing now or created by Licensee in accordance
with the terms hereof) by means of Satellite Systems
and Cable Systems (including, without limitation, the
exclusive right and license to Exhibit the Title
and/or any excerpts therefrom or Versions thereof
(whether existing now or created by Licensee in
accordance with the terms hereof) via VOD and the
Internet delivered by Satellite Systems and Cable
Systems) whether such means are now known or
hereafter devised;
(b) The non-exclusive right and license, outside the
United States, and its territories, possessions and
commonwealths but within the Territory, to Exhibit
the Title and/or any excerpts therefrom or Versions
thereof (whether existing now or created by Licensee
in accordance with the terms hereof) by means of
Satellite Systems and Cable Systems (including,
without limitation, the non-exclusive right and
license to Exhibit the Title and/or any excerpts
therefrom or Versions thereof (whether existing now
or created by Licensee in accordance with the terms
hereof) via VOD and the Internet delivered by
Satellite Systems and Cable Systems) whether such
means are now known or hereafter devised;
(c) The non-exclusive right and license throughout the
Territory to Exhibit Titles and/or any excerpts
therefrom or Versions thereof (whether existing now
or
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created by Licensee in accordance with the terms hereof) by all means
now known or later discovered via Stand Alone Systems and the
Internet, with the understanding that for purposes of the Internet,
the Territory shall be deemed to be the entire universe, subject in
the case of Internet rights to the provisions of Section 2(h) below;
(d) The non-exclusive right and license to duplicate each Title and to
distribute such Title, to and only to the extent necessary or
desirable to effectuate the Exhibition and exploitation of that Title
in accordance with the terms hereof;
(e) The non-exclusive right to advertise, promote and publicize Licensee's
Exhibition of the Titles and all matters relating thereto in all media
and/or medium now known or hereafter devised, to use Still Images
and/or excerpts from the Titles in connection with such advertising,
promotion, and publicity and to market, advertise, promote and
publicize Licensee's exhibition of Titles and Still Images;
(f) In connection with the exercise of the other Rights hereunder, the
non-exclusive right to use the names and likenesses of all Persons
appearing in the Titles and the Still Images, and the names of those
persons who rendered services in connection with the Titles;
(g) The non-exclusive right to change the name of a Title, and the
non-exclusive right to edit and modify each of the Titles hereunder in
order to create derivative Versions of each of the Titles including,
without limitation, XX Versions of each Title and any variations of
such Versions in Licensee's discretion; the non-exclusive right to
include one or more segments from a Title and to combine same with one
or more segments from another Title or from segments of motion
pictures not subject to this Agreement in order to create a new
compilation work (herein referred to as a "Clip"), it being understood
that Licensee shall have the right to distribute, market, advertise,
promote, publicize, Exhibit and otherwise exploit any such Clip on the
same basis and subject to the same terms that apply to Titles and
Versions hereunder; provided, however, Licensee shall not change the
existing name title of the Titles to a new name title that includes
the name "Pleasure" (other than the use of the word pleasure in a
manner that could not be reasonably construed to refer to the company
name Pleasure) or any other trademark or trade name now owned or
controlled by Licensor listed on Exhibit "C" attached hereto and
incorporated herein by this reference without the prior written
consent of Licensor; nor shall Licensee use the name "Pleasure" or any
other tradename or trademark listed on Exhibit "C" to identify any
Clip unless such Clip is comprised solely of segments from Titles
licensed hereunder and/or licensed pursuant to that certain New
Release License Agreement between the parties of even date herewith;
and
(h) The right to sublicense any of Licensee's rights hereunder (other than
the rights contained in Section 2(g) hereunder to edit and modify
Titles and include one or more segments in order to create a Clip) for
the purpose of distribution, promotion, advertising, publicizing,
marketing, Exhibition and exploitation of each Title or any Version or
portion thereof; provided, however, no such sublicense shall be for a
term beyond the License Period and Licensee shall not otherwise grant
any rights with respect to a Title, Version or portion thereof which
exceed the Rights Licensee has with respect to such Title, Version or
portion thereof pursuant to this Agreement. Except as provided in the
immediately succeeding two sentences Licensee shall have no right to
sublicense any Right relating to the Internet or otherwise provide
others with access to the Titles, Versions or portions thereof through
the Internet. Subject to the proviso contained in the first sentence
of this Section 2(h), Licensee shall be permitted to grant a
sublicense related to the Internet or otherwise provide others with
access to any of the Titles, Versions or any portion thereof through
the Internet provided (x) pursuant
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to such sublicense or other access parties can only access such
Titles, Versions or portions thereof through the servers of Ten.com or
a successor, derivative or mirror site of Ten.com that has a
substantially similar platform as Ten.com, as such may be changed from
time to time and (y) such sublicense or other access relates to a
majority of content on or available on Ten.com or such other site
other than the Titles, Versions or any portion thereof.
Notwithstanding the foregoing, Licensee shall not resell, sublicense
or otherwise permit access to the Titles, Versions or any portion
thereof through the Internet to any webmaster, third party aggregator
or content provider or any other party other than (a) any of the
foregoing who provide access to consumers through a Ten.com, as such
may be changed from time to time, or (ii) Cable System, Satellite
System or Stand Alone System operators.
All of the rights granted under this Section may be referred to
collectively as the "Rights."
2.02 Notwithstanding anything to the contrary contained herein,
Licensor hereby specifically reserves any and all rights, which are not
specifically granted hereunder. The parties acknowledge and agree that the grant
of Rights hereunder shall be subject to and limited by any preexisting license
or similar right granted to any third party by any party from which Licenser
acquired rights to the Tiltes, Versions or Still Images. Without limiting the
generality of the foregoing, Licensor specifically reserves the right (and
Licensee shall have no right in any manner) to sell or distribute Titles in
videocassette or digital versatile disk (DVD) formats for sale or resale to
third parties. Additionally, Licensee covenants and agrees that if in connection
with any exercise of the Rights hereunder any third party is permitted or has
the ability to download any Title, Version, excerpt therefrom or any Still
Image, Licensee shall use commercially reasonable efforts to ensure that such
Title, Version, excerpt or Still Image, as the case may be, contains coding or
other adequate technology to provide that access to such information by any such
third party is terminated within 30 days from the date of delivery to any such
third party; provided, however, Licensor hereby acknowledges and agrees that
even if Licensee makes such efforts, there is no guarantee that such efforts
will be effective in terminating such information within any such time frame
because of technology which may now exist or hereafter be devised.
Notwithstanding anything to the contrary contained herein, the parties
acknowledge and agree that if and to the extent Stand Alone Systems can be
accessed through any technology now known or hereafter created or discovered
that is or could be deemed to be within the definition of Cable Systems and/or
Satellite Systems, notwithstanding the grant of exclusive Rights in Section
2.01(a) hereof, Licensor or its sublicensees or assignees shall have the right
to use such technology in connection with accessing Stand Alone Systems.
Pleasure acknowledges that an inadvertent breach by CSB of the restrictions
contained in the proviso of the first sentence of Section 2(h) shall not, in and
of itself, be cause to terminate or vitiate this entire Agreement.
2.03 Both Parties acknowledge and agree that except for Licensee's
exercise of the Rights during the Term and each applicable License Period hereof
in accordance with the terms and conditions hereof, Licenser shall own all
right, title and interest in and to all Titles, Still Images, Versions and
excerpts thereof (but excluding any segments of Clips which are not subject to
this Agreement), including without limitation rights of trademark and copyright
and nothing herein shall be construed to grant Licensee any ownership rights,
rights to sublicense (except as provided in Section 2.01(h) hereof) or similar
rights in and to the Titles, Still Images, Versions or any excerpts thereof.
3. LICENSE PERIOD; TERM
3.01 The term of this Agreement and the period of time in which
Licensee and/or its permitted assignees or sublicensees may exercise the Rights
shall be for a period commencing on the date hereof and extending up through and
that date that is five years and six months from the date hereof (the "Term" or
the "License Period"). The parties agree to comply with the delivery, selection
and licensing process to take place in accordance with paragraph 5 below and to
use their good faith efforts to complete said process no event later than that
date which is fifteen months from the date hereof.
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3.02 Licensee agrees that upon termination of the applicable License
Period for a particular Title it shall, at its sole cost and expense, destroy or
return (in Licensee's discretion) to Licensor all copies of Still Images and
Dubs in its or its sublicensee's possession, provided however with respect to
Dubs in lieu of destroying or returning such Dubs, Licensee may efface all Dubs
provided Licensee shall upon request of Licensor provide Licenser with (i) a
certificate executed by a third party or by an officer of Licensee confirming
that such effacing has occurred or (ii) any other commercially reasonable
evidence satisfactory to Licensor.
4. CONSIDERATION
4.01 The parties acknowledge and agree that they have each delivered
to the other fair and adequate consideration for this Agreement including,
without limitation, the execution and delivery of the Settlement Agreement dated
as of the date hereof to which this Agreement is attached as "Exhibit 6" and all
terms, provisions and consideration contained in said Settlement Agreement.
5. DELIVERY OF TITLES
5.01 Licenser shall have the following obligations at its own cost and
expense except where otherwise specified:
(a) Licensor shall be obligated to deliver to Licensee,
within ten (10) business days of Licensee's written
request, up to two hundred (200) screening VHS tapes
from those motion picture Titles listed in Exhibit "A"
("Screeners") as requested by Licensee for Licensee's
review. Licensee shall have a period of thirty (30)
days from Licensee's receipt of same within which to
select and/or identify which of such Titles it wishes
to make its own copies from the Dubs. For purposes
hereof "Edit Dubs" shall mean those Titles Licensee
has selected and/or identified as Titles of which it
wishes to make its own copies from Dubs. Licensee
shall then have the right to make the Edit Dubs itself
or select a third party facility to do so, and it is
presently contemplated that Licensee will request New
Age Conversions, a studio located in North Hollywood,
California ("New Age"), to make the Edit Dubs,
although Licensee shall not be obligated to do so.
Licenser agrees to deliver Dubs of Titles selected to
Licensee, New Age, or any other third party facility
chosen by Licensee within ten (10) business days of
Licensee's written instructions for the purpose of
making Edit Dubs. Once the Edit Dubs are made and
reviewed by Licensee, Licensee shall identify each
such Edit Dub as either a Broadcast on a Non-Broadcast
Title, in its discretion. Licensee shall then instruct
New Age (or any other applicable third party facility)
to duplicate each Non-Broadcast Title identified by
Licensee and to ship same directly to the offices of
Licensee located in Boulder, Colorado; and Licensee
shall also instruct New Age (or any other applicable
third party facility) to marshal and deliver each
Broadcast Title identified by Licensee directly to
Pegasus Post, a facility located in Chatsworth,
California ("Pegasus") or to any other third party
selected by Licensee. The foregoing process shall be
repeated every thirty (30) days until such time as
Licensee has selected all Titles it desires from
Exhibit "A" but in no event shall Licensee select
more than two thousand (2,000) motion pictures to
become Titles hereunder and in no event may Licensee
request more than two hundred (200) Screeners in any
thirty day period. Licensee shall endeavor to select
Titles in such a manner so it requests blocks of no
less than fifty (50) Titles at a time and that not
more than one hundred fifty (150) of Licensor's Dubs
are out of Licenser's possession during each of the
aforesaid thirty (30) day periods. Licenser shall not
be obligated to comply with such request for
additional Dubs if Licensee has not returned to
Licenser at least fifty (50) Dubs which were the
subject of any prier request; and Licensee shall pay
all costs and expenses of redelivering all Dubs to
Licensor and all costs of copying and duplicating
Dubs.
(b) Licensor's failure to meet its delivery obligations in
a timely manner (other than an inadvertent,
non-material failure) as set forth above shall be
deemed to be a
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breach of this Agreement unless Licenser cures such
failure within fourteen (14) business days following
the date which Licensee gives Licensor written notice
of such failure. Provided Licensor delivers all of the
Screeners and Dubs to Licensee in a timely manner in
compliance with the foregoing provisions (other than a
non-material, inadvertent failure), Licensee may not
select any Screeners from Exhibit "A" and accordingly
no additional motion pictures will become Titles after
the date which is fifteen (15) months following the
date hereof. Licensee agrees that in the event of an
inadvertent, non-material failure of Licenser to meet
its delivery obligations in Section 5.01(a) the
fifteen (15) month period described above shall be
extended for a period of time equal to the aggregate
period of time of all such delivery failures that
exceed five (5) business days after Licensor receives
notice of such failure.
(c) Licensor, upon the written request of Licensee, shall,
not later than fifteen (15) business days after
receipt of such written request, deliver to Licensee
(i) an 18 USC 2257 Statement Of Compliance for a
Title, executed by the Custodian of Records, (ii) a
talent release executed by each performer in a Title,
if and to the extent such talent release is available
and (iii) one (1) trailer in XXX and cable version for
each Title, if and to the extent available;
5.02 Upon loss, theft or destruction of any Dub provided by Licensor
while in the possession of Licensee, Licensee shall promptly advise the Licenser
of such loss, theft or destruction by affidavit setting forth the facts thereof
and will provide Licenser a replacement of such Dub at Licensee's sole cost, if
requested by Licenser. If at any time hereunder an Edit Dub or a Dub is lost,
stolen or destroyed, Licensor agrees to provide Licensee (or its authorized
representative) access to the Dub (or a new Dub), if available, at no cost in
order for Licensee to make a new Edit Dub, and the actual cost of making such
new Edit Dub shall be borne by Licensee. If Licenser delivers an original
edition of the source material of an individual Title (or Licensor's only copy
of an individual Title for which the source material is damaged or no longer
exists), Licenser shall assume the risk and take sole and full responsibility
for any loss, theft or destruction of same while in the possession or control of
Licensee or any facility utilized by Licensee.
6. REPRESENTATIONS AND WARRANTIES
6.01 Licensor hereby represents and warrants to Licensee that (i) all
persons depicted in each Title were 18 years of age or older at the time each
Title was produced, (ii) it has the right and power to grant all Rights granted
to Licensee hereunder, (iii) it has obtained all consents, approvals and
licenses from all actors, musicians and other persons who provided services in
connection with or appear in a Title or entity whose products appear in a Title,
(iv) all costs of production of each Title, and all artists, actors, musicians
and persons rendering services in connection with the production of each Title
have been or will be paid any sums due to them by Licenser, and (v) Licenser has
acquired all music rights and music clearances which are required with respect
to the music contained in each Title and that no supplemental or additional use
payments shall be required with respect to the Exhibition and exploitation of
any Title and/or any advertising or promotion thereof which contains the music
embodied in any Title.
6.02 Licensee represents and warrants to Licenser that it has and/or
will obtain and maintain all required licenses, permits and approvals, if any,
for Licensee's direct Exhibition of each Title and for the exercise of
Licensee's Rights hereunder.
6.03 Licensor represents and warrants that (i) it has the right to
grant all Rights granted to Licensee hereunder; (ii) it has not as of the date
of this Agreement, and will not during the Term and applicable License Period
assign, license, pledge, or otherwise encumber, restrict or otherwise take
action that would diminish the Rights granted to Licensee hereunder; (iii) to
its knowledge no third party from whom Licensor has acquired any Titles,
assigned, licensed, pledged, or otherwise encumbered, restricted, or otherwise
took any action that would diminish the Rights granted to Licensee hereunder and
to Licenser's knowledge there is no threatened, pending or active claim or suit
with respect to the same, (iv) neither the Titles, the Documentation, nor any
parts thereof, nor any materials contained therein or
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synchronized therewith, nor the exercise of any Right granted hereunder,
violates or will violate or will infringe any contract or agreement to which
Licensor is a party, any trademark, trade name, copyright (whether common law or
statutory), patent, literary, artistic, or dramatic right or right of privacy of
(or slanders, libels or is defamatory with respect to) any person, firm,
corporation, or association whatsoever or, (v) all Titles were produced in
accordance with applicable work place safety laws and other laws and regulations
requiring a permit or other approval to use a specific set or location and (vi)
to Licenser's knowledge Licensor has not received any written notice from a
state or federal regulatory agency or authority that any Title is in violation
of obscenity laws.
6.04 EXCEPT AS SPECIFICALLY SET FORTH HEREIN, AND WITHOUT LIMITATION
OF ANY REPRESENTATIONS AND WARRANTIES MADE BY LICENSOR AND LICENSEE IN THIS
AGREEMENT, ALL WARRANTIES, EXPRESS OR IMPLIED ARE EXPRESSLY EXCLUDED AND
DECLINED BY LICENSOR OR LICENSEE, AS THE CASE MAY BE.
6.05 Licenser acknowledges and agrees that notwithstanding the grant
of Rights hereunder Licensee has no obligation to Exhibit, promote, publicize,
market or otherwise exploit the Titles or Still Images. Accordingly, Licensor
will have no claim against Licensee based solely upon a failure of Licensee to
Exhibit, promote publicize, market or otherwise exploit the Titles or Still
Images or any particular Title or Still Image.
7. INDEMNIFICATION
7.01 Licenser agrees to fully indemnify and hold Licensee and its
directors, officers, members and agents harmless from and against any
proceeding, action or claim that may arise out of or relate to the breach by
Licenser of any representation or warranty hereunder, including, but not limited
to, any and all damages, claims, losses and/or expenses (including reasonable
attorneys' fees and costs) incurred by Licensee arising out of any such
proceeding, action or claim.
7.02 Licensee agrees to fully indemnify and hold Licensor and its
directors, officers, members and agents harmless from and against any
proceeding, action or claim that may arise out of or relate to the breach by
Licensee of any representation or warranty hereunder or any material or content
added to a Title or Version which is deemed to violate any applicable obscenity
laws including, but not limited to, any and all damages, claims, losses and/or
expenses (including reasonable attorneys' fees and costs) incurred by Licenser
arising out of any such proceeding, action or claim.
7.03 Licensee agrees to fully indemnify and hold Licensor and its
directors, officers, members and agents harmless from and against any
proceeding, action or claim that may arise out of any content added to a Title
or Version by Licensee, other than content of Licenser, including but not
limited to, any and all damages, claims, losses and/or expense (including
reasonable attorneys' fees and costs) incurred by Licensor arising out of any
such proceeding, action or claim.
7.04 In the event of any claim, action, or proceeding for which a
party hereunder is entitled to indemnity under Section 7, the other party (an
"Indemnifying Party"), shall have the right to defend the same through counsel
of its own choosing at its sole expense, and the Indemnifying Party shall
indemnify and hold harmless the other party, including any of its officers,
directors, partners, employees, and agents, from and against any and all
damages, claims, losses, or expenses (including reasonable attorneys' fees)
incurred in connection therewith.
8. FORCE MAJEURE
Neither party shall be liable or responsible for any failure or
inability to perform or delay caused by reason of one or more so-called "force
majeure" contingencies (e.g. any act of God, fire, earthquake, strike, labor
disturbance, civil commotion, acts of government, it's agencies, or governmental
officers, any order, regulation, ruling or action of any labor union or
association effecting a party hereto or the industry in which such party is
engaged, delays in the delivery of materials or supplies, satellite transponder
failure, terrorist attack, any act of sabotage, etc.). The Term of this
Agreement and any applicable License Period for a particular Title shall be
extended hereunder for a period equal to the duration of any such contingencies
to the extent that such contingencies interfere with or disrupt Licenser's
ability to perform its
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obligations hereunder or interfere with Licensee's exercise of its Rights
hereunder. In the event any such force majeure contingency, the effected party
shall promptly notify the other party in writing of same and the parties will
determine in good faith the amount of time, if any, that the Term of this
Agreement and any applicable License Period for a particular Title shall be
extended in accordance with the terms of this paragraph 8.
9. SEVERABILITY
Subject to this section, if any provision of this Agreement or the
application thereof to any party or circumstance shall, to any extent, be
invalid and/or unenforceable, the remainder of this Agreement and the
application of such provision to any other parties or circumstances other than
those as to which it is held invalid and/or unenforceable, shall not be affected
thereby, and each such other term and provision of this Agreement shall be valid
and be enforceable to the fullest extent permitted by law.
10. FURTHER DOCUMENTS
The Licenser and Licensee shall promptly execute, acknowledge, and
deliver or promptly procure the execution, acknowledgment and delivery of any
and all further assignments, agreements and instruments, which may be deemed
necessary or expedient to effectuate the purposes of this Agreement.
11. WAIVERS
No waiver by either party of any breach or default under this
Agreement shall be deemed to be a waiver of any proceeding or subsequent breach
or default.
12. NOTICES
12.01 All notices or remittances which either party may wish to serve
or may be required to serve on the other under this Agreement shall be in
writing, and shall be served by personal delivery thereof, or by prepaid
certified mail, return receipt requested, or by prepaid overnight air express
delivery, addressed to the respective parties at their addresses set forth
below, with a copy transmitted by email (provided that all written requests to
provide Screeners and Dubs pursuant to Section 5.01(a) need only be delivered by
e-mail) to MKMAINMAN@AOL.com and Debbie@PleasureProductions.com), to the
following individuals:
(a) If to Licensee, to
Colorado Satellite Broadcasting, Inc.
7007 Winchester Circle, #200
Boulder, CO 80301
Attn: Michael Weiner
mweiner@noof.com
With a copy to:
Frank W. Visciano, Esq. Luis Toro, Esq.
Senn Visciano Kirschenbaum P.C.
1801 California Street, #4300 Denver, CO 80202
fvisciano@sennlaw. corn ltoro@sennlaw.com
(b) If to Pleasure, to
Pleasure Licensing, LLC
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Pleasure Productions, Inc.
59 Lake Drive
P.O. Box 946 Hightstown, NJ 08520
Attn: Michael
Koretsky mkmainman@aoI.com
With a copy to:
Ira Rosenau, Esq. and Barry J. Siegel, Esq.
KLEHR, HARRISON, HARVEY, BRANZBURG & ELLERS
260 5. Broad Street
Philadelphia, Pennsylvania 19102
irosenau@klehr.com
bsiegeI~klehr.com
The above persons' addresses, attorneys, and emails to which notices
will be sent pursuant to this Settlement Agreement may be changed by any party
by giving ten (10) days' notice in writing to the other Parties specified in
Subparagraph (a) above. The parties acknowledge and agree that in the event of
any breach or alleged breach of this Agreement, each party will give the other
party written notice of such breach or alleged breach and such party shall have
twenty-one (21) business days (except as specifically provided herein to the
contrary) to cure such breach. If such party cures such breach or alleged breach
within such period then the other party will have no claim for damages or cause
to terminate the term of this Agreement as such relates to such breach or
alleged breach.
13. RELATIONSHIP OF THE PARTIES
Nothing contained in this Agreement shall be deemed to constitute
either of the parties a joint venturer, partner, or agent of the other. Neither
party shall hold itself out contrary to the terms of this Agreement and neither
party shall become liable by reason of any representation, act or omission of
the other contrary to the provisions hereof.
14. ENTIRE AGREEMENT
This Catalog License Agreement, together with that certain Settlement
Agreement between the parties referred to in paragraph 4 above, and that certain
New Release License Agreement dated as of the date hereof between the parties,
contain the full and complete understanding between the parties hereto and
supersedes all prior understandings, whether written or oral, pertaining to the
subject matter hereof and cannot be modified except by a written instrument
signed by the parties hereto.
15. APPLICABLE LAWS
This Agreement shall be governed by the laws of Colorado and the
federal laws of the United States of America applicable therein. In the event of
any dispute between the parties, the prevailing party shall be entitled to
recover all costs (including reasonable attorneys' fees) from the other party.
The parties agree that any dispute shall be resolved in the state or federal
courts of the United States, as may be applicable, located in Denver, Colorado,
Philadelphia, Pennsylvania or New Jersey provided such court determines that
subject matter jurisdiction is appropriate and the parties do hereby submit
themselves to the sole and exclusive venue and jurisdiction of such courts
located in Denver, Colorado, Philadelphia, Pennsylvania or New Jersey without
protest or challenge.
16. ASSIGNMENT
Except as specifically provided in Section 2.01(h), neither party may
assign, sublicense or convey this Agreement or any part thereof without the
prior written consent of the other party, which consent shall
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not be unreasonably withheld, provided, however, either party may assign their
rights and obligations hereunder (i) in connection with a merger, consolidation
or similar transaction where shareholders of such party prior to such merger,
consolidation or similar transaction will own less than fifty percent (50%) of
the voting power after such merger, consolidation or other transaction, (ii) in
connection with a sale of all or substantially all of their assets or (iii) to a
majority-owned subsidiary or an entity which owns a majority of the voting power
of such entity (a "Change of Control"). Pleasure agrees that in the event it
assigns its obligations hereunder on or prior to that date which is fifteen (15)
months after the date hereof, it shall guarantee the performance by such
assignee of the obligations to deliver Dubs and Screeners as provided in Section
5.01 hereof.
17. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall
constitute an original and all of which, when taken together, shall constitute
one agreement.
18. PARTIES BOUND BY AGREEMENT
This Agreement is binding upon the parties hereto and upon their
respective successors and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of June 12, 2003.
LICENSEE; COLORADO SATELLITE LICENSOR: PLEASURE LICENSING, LLC
BROADCASTING, INC.
/s/ Michael Weiner /s/ Frank Koretsky
--------------------------------- ---------------------------------
By: Michael Weiner By:
PLEASURE PRODUCTIONS, INC.
/s/ Frank Koretsky
---------------------------------
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Exhibit "C"
PLEASURE LIMITED EDITIONS
PLUM LIMITED EDITIONS
PLEASURE PRODUCTIONS(R)
PLEASURE FOREIGN
HIP VIDEO(R)
HEAT SEEKER VIDEO(R)
TOP HEAVY PRODUCTIONS(R)
TORRID VIDEO
AUSTRALIAN EROTICA
PARLIAMENT VIDEO
PHANTOM VIDEO
HORNE BOI PRODUCTIONS
SCANDINAVIAN VIDEO PRODUCTIONS
PLEASURE'S NASTIES MOMENTS(R)
VALLEY GIRL COLLECTION
OUTLAW PRODUCTIONS
AL BORDA VIDEO
AL BORDA FOREIGN
PLUM PRODUCTIONS(R)
WESTERN VISUALS
LAS VEGAS VIDEO
TOPPERS(R)
ROSEBUD PRODUCTIONS
ARMAGEDDON ENTERTAINMENT
MAYt ZANE PRODUCTIONS
BEDTIME PRODUCTIONS
TORI WELLS/PAUL NORMAN
IN HAND VIDEO
SUN FILMS
STREET TRASH VIDEO
HARDON PRODUCTIONS
NEW VISION VIDEO(R)
AUGUST WEST PRODUCTIONS
DUNGEON VIDEO INTERNATIONAL
GRIND `EM OUT PRODUCTIONS
IN FURS PRODUCTIONS
SHACKLE VIDEO
BRUCE 7
By:
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