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MARKETING AND PUBLICITY.
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Trademark License Grant. During the Term and subject to the restrictions and conditions set forth below, Publisher hereby grants Tremor a non-transferable, non-exclusive, non-sublicensable, royalty-free license to display Publisher’s name, Publisher Site URLs and application names, and trademarks (collectively, “Publisher Trademarks”) solely to sell and promote the sale of Ads on the Publisher Sites. In addition, Tremor may reproduce screen shots of pages of the Publisher Sites solely for the purpose of preparing sales materials. Publisher agrees to execute the Entity Proof of Partnership Letter attached to this Agreement as Exhibit A. Neither party will issue any press releases concerning this relationship without the prior written consent of the other party.
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No Assertions as to Trademarks. Tremor will not (a) assert any trademark or other intellectual property or proprietary right in the Trademarks or in any element, derivation, adaptation, variation or name thereof; (b) contest the validity of any of the Trademarks; (c) contest Publisher’s or its licensors’ ownership of any of the Trademarks; or (d) in any jurisdiction, adopt, use, register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, or as a domain name, any Trademarks, or any word, symbol or device, or any combination confusingly similar to, or which includes, any of the Trademarks.
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Goodwill in Trademarks. As between Publisher and Tremor, any goodwill resulting from Tremor’s use of any Trademarks will inure to the benefit of Publisher and/or its licensors and will automatically vest in Publisher and/or its licensors upon use by Tremor. Tremor will not engage in any action it has reason to know that may dilute, diminish, or otherwise damage Publisher’s or its licensors’ rights and goodwill in the Trademarks.
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Trademark Guidelines. Tremor will abide by the trademark quality control guidelines, if any, for Publisher that are provided to Tremor during the Term. If Publisher provides any updated guidelines during the Term, Tremor will comply with the updated guidelines within a reasonable period of time.
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Ownership of Trademarks. As between Publisher and Tremor, all right, title and interest in the Trademarks are exclusively owned by Publisher or its licensors. Publisher grants no rights to the Trademarks except for the limited license granted above. Publisher reserves any rights not expressly granted and disclaims all implied licenses.
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GOVERNING LAW; ARBITRATION.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, New York, excluding application of its conflicts of law principles. All actions or proceedings arising in connection with, touching upon or relating to this Agreement, the breach thereof and/or the scope of the provisions of this Section (a “Proceeding”) shall be submitted to JAMS (“JAMS”) for binding arbitration under its Comprehensive Arbitration Rules and Procedures if the matter in dispute is over $250,000 or under its Streamlined Arbitration Rules and Procedures if the matter in dispute is $250,000 or less (as applicable, the “Rules”) to be held solely in New York, New York , U.S.A., in the English language in accordance with the provisions below:
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Each arbitration shall be conducted by an arbitral tribunal (the “Arbitral Board”) consisting of a single arbitrator who shall be mutually agreed upon by the parties. If the parties are unable to agree on an arbitrator, the arbitrator shall be appointed by JAMS. The arbitrator shall be a retired judge with at least ten (10) years’ experience in commercial matters. The Arbitral Board shall assess the cost, fees and expenses of the arbitration against the losing party, and the prevailing party in any arbitration or legal proceeding relating to this Agreement shall be entitled to all reasonable expenses (including, without limitation, reasonable attorney’s fees). Notwithstanding the foregoing, the Arbitral Board may require that such fees be borne in such other manner as the Arbitral Board determines is required in order for this arbitration clause to be enforceable under applicable law. The parties shall be entitled to conduct discovery in accordance with the applicable Section of the New York Code of Civil Procedure, provided that (a) the Arbitral Board must authorize all such discovery in advance based on findings that the material sought is relevant to the issues in dispute and that the nature and scope of such discovery is reasonable under the circumstances, and (b) discovery shall be limited to depositions and production of documents unless the Arbitral Board finds that another method of discovery (e.g., interrogatories) is the most reasonable and cost efficient method of obtaining the information sought.
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There shall be a record of the proceedings at the arbitration hearing and the Arbitral Board shall issue a Statement of Decision setting forth the factual and legal basis for the Arbitral Board's decision. If neither party gives written notice requesting an appeal within ten (10) business days after the issuance of the Statement of Decision, the Arbitral Board's decision shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to the Los Angeles New York County Superior Court or, in the case of Tremor Publisher the New York State Court, such other court having jurisdiction over Publisher, which may be made ex parte, for confirmation and enforcement of the award. If either party gives written notice requesting an appeal within ten (10) business days after the issuance of the Statement of Decision, the award of the Arbitral Board shall be appealed to three (3) neutral arbitrators (the “Appellate Arbitrators”), each of whom shall have the same qualifications and be selected through the same procedure as the Arbitral Board. The appealing party shall file its appellate brief within thirty (30) days after its written notice requesting the appeal and the other party shall file its brief within thirty (30) days thereafter. The Appellate Arbitrators shall thereupon review the decision of the Arbitral Board applying the same standards of review (and all of the same presumptions) as if the Appellate Arbitrators were a New York State Supreme Court, Appellate Division Court of Appeal reviewing a judgment of the Los AngelesNew York State Supreme CourtCounty Superior Court, except that the Appellate Arbitrators shall in all cases issue a final award and shall not remand the matter to the Arbitral Board. The decision of the Appellate Arbitrators shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to the Los Angeles New York County Superior Court or, in the case of Tremor Publisher the New York State Court, such other court having jurisdiction over Publisher, which may be made ex parte, for confirmation and enforcement of the award. The party appealing the decision of the Arbitral Board shall pay all costs and expenses of the appeal, including the fees of the Appellate Arbitrators and including the reasonable outside attorneys' fees of the opposing party, unless the decision of the Arbitral Board is reversed, in which event the costs, fees and expenses of the appeal shall be borne as determined by the Appellate Arbitrators.
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Subject to a party's right to appeal pursuant to the above, neither party shall challenge or resist any enforcement action taken by the party in whose favor the Arbitral Board, or if appealed, the Appellate Arbitrators, decided. Each party acknowledges that it is giving up the right to a trial by jury or court. The Arbitral Board shall have the power to enter temporary restraining orders and preliminary and permanent injunctions. Neither party shall be entitled or permitted to commence or maintain any action in a court of law with respect to any matter in dispute until such matter shall have been submitted to arbitration as herein provided and then only for the enforcement of the Arbitral Board’s award; provided, however, that prior to the appointment of the Arbitral Board or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief in a court of competent jurisdiction in Los Angeles New York County, California New York or, if sought by Publisher, New York, New York such other court that may have jurisdiction over Publisher, without thereby waiving its right to arbitration of the dispute or controversy under this Section. All arbitration proceedings (including proceedings before the Appellate Arbitrators) shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. Notwithstanding anything to the contrary herein, Tremor hereby irrevocably waives any right or remedy to seek and/or obtain injunctive or other equitable relief or any order with respect to, and/or to enjoin or restrain or otherwise impair in any manner, the production, distribution, exhibition or other exploitation of any motion picture, production or project related to Publisher, its parents, subsidiaries and affiliates, or the use, publication or dissemination of any advertising in connection with such motion picture, production or project. The provisions of this Section shall supersede any inconsistent provisions of any prior agreement between the parties.
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GENERAL. The parties are independent contractors. Nothing in this Agreement will be construed to place the parties in any partnership, agency or joint venture relationship. Neither party may assign or otherwise transfer this Agreement
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without the other party’s written consent, which shall not to be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, either party may assign this Agreement without the other party’s consent upon prior written notice to the other party in the case of merger, acquisition or sale of all, or substantially all, of the assigning party’s assets, stock or business. Upon receipt of such notice, the non-assigning party may immediately terminate this Agreement upon written notice to the assigning party. Subject to the foregoing. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties’ respective successors and permitted assigns. Any legal notice required to be delivered shall be deemed delivered: three (3) days after deposit in U.S. mail; one (1) business day if sent by overnight courier service; and immediately if sent electronically or by fax, confirmed by registered or certified mail, or delivered in person. All communications will be sent to the addresses set forth below or to such other address as may be designated by a party by giving written notice to the other parties pursuant to this Section.
If to Crackle: Crackle, Inc.
c/o Sony Pictures Entertainment Inc.
10202 W. Washington Blvd.
Culver City, CA 90232
Facsimile No: (310) 244-2169
Attn: Executive Vice President, Legal Affairs
With a copy to: Sony Pictures Entertainment Inc.
10202 W. Washington Blvd.
Culver City, CA 90232
Facsimile No: + 1 (310) 244-0510
Attn: General Counsel
All business correspondence: Jason M. Schaeffer
Executive Director, Media Monetization
jason_schaeffer@spe.sony.com
If to Tremor: Tremor Video, Inc.
Tremor Video, Inc.
53 West 23rd Street
New York, New York 10010
Attn: General Counsel
If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to circumstances beyond the reasonable control of the non-performing party. This Agreement, including all applicable Spot Buys, attachments and addendums hereto, constitutes the complete agreement between the parties and supersedes all prior agreements or representations, written or oral, concerning the subject matter of this Agreement. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of a Spot Buy, attachment or addendum hereto, the Spot Buy, attachment or addendum shall govern. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, each of the parties has caused this Tremor Video Master Services Agreement to be executed by its duly authorized officer as of the date first above written.
TREMOR VIDEO, INC. CRACKLE, INC.
By: By:
Name: Name:
Title: Title:
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