APPLICATION DISTRIBUTION AGREEMENT
This Application Distribution Agreement (this “Agreement”) is effective as of October 22, 2013
(the “Effective Date”) by and between Fanhattan, LLC, a Delaware limited liability company with offices
located at 489 S. El Camino, San Mateo, CA 94402 (“Distributor”), and Sony Pictures Television Inc., a
Delaware corporation with offices located at 10202 W. Washington Blvd., Culver City, CA 90232
(“SPT”) (each, a “Party”, and together, the “Parties”).
SECTION 1.
DEFINITIONS.
“Approved Channels” means direct to consumer retail distribution or other distribution channels
mutually agreed to in writing by the Parties.
“Confidential Information” means information which should be reasonably understood to be
confidential when given, whether in written, oral, graphic, electronic or any other form, that is disclosed
to or observed by a Party in the course of performing its obligations hereunder, including, without
limitation: the terms of this Agreement; product and pricing information; non-public financial
information; marketing and advertising information; business strategies; information pertaining to
customers or vendors; and technology, including software, hardware, system designs and specifications
and documentation.
“Custom Work” has the meaning set forth in Section 2.1(a).
“Distributor Device(s)” means the Fanhattan-branded Android set-top box, as well as any other
Distributor branded device or product mutually agreed to in writing by the Parties.
“Distributor Intellectual Property” means, collectively: (a) the Marks of Distributor and its
affiliates; (b) all software, hardware and other technology utilized within or in connection with the
Distributor Devices and developed, owned or licensed from a third party by Distributor and (c) all
intellectual property rights, whether now known or hereafter recognized, in or to any of the foregoing.
“SPT Application(s)” means the software application or applications provided to Distributor by
SPT, including the Custom Work, that can be installed or executed within a Distributor Device that will
allow consumers to access content through a SPT Service.
“SPT Intellectual Property” means, collectively: (a) the Marks of SPT and its affiliates; (b) all
software, hardware and other technology utilized within or in connection with the SPT Application(s),
including any Custom Work, SPT Website(s) and SPT Service(s), and developed, owned or licensed from
a third party by SPT; (c) all content used in connection or associated with a SPT Service and (d) all
intellectual property rights, whether now known or hereafter recognized, in or to any of the foregoing.
“SPT Service(s)” means each streaming video service offered by SPT that provides content on an
ad service basis and, at SPT’s discretion, certain other promotional content at no cost.
“SPT Website(s)” means certain websites, successor websites and any subdomains thereof,
owned or licensed by SPT, set forth by SPT to Distributor from time to time during the Term, including,
without limitation, the website located at www.crackle.com or any successor website(s) (including any
subdomains).
“Marks” means a Party’s trademarks, trade names, brands, logos and copyrightable materials.
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HL 806.2
“Territory” means the United States, its territories, possessions, commonwealths and
protectorates, including Puerto Rico, Guam, the U.S. Virgin Islands, and all U.S. military bases, as may
be amended from time to time by mutual agreement of the Parties.
All other capitalized terms have the definitions set forth in this Agreement.
SECTION 2.
2.1
SPT SERVICE(S) ON DISTRIBUTOR DEVICES.
SPT Application(s) and License.
(a)
Subject to satisfactory technical due diligence by SPT, SPT and Distributor will each
use commercially reasonable efforts to develop and implement a plan and technology to integrate certain
SPT Applications onto Distributor Devices, commencing with the “Crackle” Application. Distributor
shall adapt SPT’s current Android based application of the “Crackle” Application for utilization and
distribution on the Distributor Device at Distributor’s sole expense (the “Custom Work”).
(b)
Subject to (i) SPT’s corporate approval process to make available each SPT
Application on Distributor Devices and (ii) the successful implementation of each SPT Application as set
forth in Section 2.1(a), following the Effective Date as the Parties mutually agree, SPT will make
available the certain SPT Services via SPT Applications on Distributor Devices via Approved Channels
within the Territory. This Agreement will automatically terminate one (1) year following the Effective
Date if, prior to that date, SPT does not make available the “Crackle” Application on Distributor Devices
pursuant to this Section 2.1(b).
(c)
During the Term and the Post Term Wind-Down Period, if any, and within the
Territory, and subject to the terms and conditions of this Agreement, SPT hereby grants to Distributor the
limited, non-exclusive, non-transferable (other than to sublicense to Distributor’s affiliates, subject to
approval from SPT), royalty-free, license to: (i) use, publish, perform, transmit, store, copy, reproduce,
display, incorporate, distribute and make available each SPT Application on and in connection with
Distributor Devices via Approved Channels and (ii) grant a sub-license to consumers who download each
SPT Application in accordance with the terms and conditions of any applicable end user license or other
agreement between SPT and such consumers.
(d)
Distributor will provide featured application placement for each SPT Application on
Distributor Devices as further described in Exhibit A attached hereto. In addition, if Distributor provides
an opportunity to any third-party video platform for application placement more prominent than the
placement that SPT would otherwise receive in accordance with Exhibit A, Distributor will provide the
same opportunities to SPT to receive such placement. Additionally, if Distributor grants access to,
adapts, or provides any advanced advertising technology to any third-party video platform, Distributor
will provide the same opportunities and technology to SPT.
(e)
Distributor agrees that it will not hide, obscure or otherwise interfere with any SPT
Application, which includes content, advertising, user interface and any other elements of the user
experience provided through each SPT Application.
2.2
Content.
(a)
SPT will determine in its discretion the content, subject always to rights availability,
and advertising, if any, provided through each SPT Application. As between the Parties, SPT will bear
the costs to acquire the rights to distribute such content (including content licensing fees and performing
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rights society fees, if applicable), as well as hosting and streaming costs involved in distributing such
content.
(b)
Distributor will not (i) copy, modify, edit, abridge, rewrite, create any derivative work
from, or in any other way alter any content, including any advertising, provided through each SPT
Application or (ii) remove, alter, or obscure in any way any proprietary rights notices (including
copyright notices) for such content.
2.3
Suspension of SPT Application from Distributor Devices.
(a)
SPT will have the right to, upon written notice to Distributor, suspend (or instruct
Distributor to suspend) access to any SPT Application from any Distributor Device if SPT, in its
reasonable, good faith discretion, determines that: (i) it may face potential claims or liability in
connection with the use or display of any SPT Application or (ii) there has been any actual or threatened
security breach that would result in a violation of the SPT Security Requirements or any other material
security breach of any SPT Application.
(b)
Distributor will have the right to, upon written notice to SPT, suspend access to any
SPT Application if Distributor, in its reasonable, good faith discretion, determines that such SPT
Application causes a material adverse impact on the technical functionality or operation of any Distributor
Device.
(c)
In the event of any suspension pursuant to this Section 2.3, the Parties will work
together in good faith to attempt to promptly resolve the applicable problem for such suspension and
restore access to any SPT Application on the applicable Distributor Device.
2.4
Blocking Third Party Applications. If, at SPT’s discretion, SPT decides to block any
third-party application on any Distributor Device from accessing a SPT Website or any content on any
SPT Website, Distributor will, upon request by SPT, use commercially reasonable efforts to facilitate
such blocking.
2.5
Maintenance and Liability.
(a)
Except for the Custom Work, SPT will be solely responsible for the support and
maintenance of any SPT Application, including any and all fixes, updates and/or enhancements, and SPT
will use commercially reasonable efforts to notify Distributor in advance of any scheduled maintenance.
SPT will be solely responsible for all customer service related to any SPT Application. Each of SPT’s
obligations under this Section 2.5(a) will be at no cost to Distributor.
(b)
Distributor will be solely responsible for the support and maintenance of the Custom
Work and the Distributor Devices, including any and all fixes, updates and/or enhancements, and
Distributor will use commercially reasonable efforts to notify SPT in advance of any scheduled
maintenance. Distributor will be solely responsible for all customer service related to the Distributor
Devices. Upon the reasonable request of SPT, Distributor will assist SPT in providing any fixes, updates
and/or enhancements to any SPT Application on Distributor Devices. Each of Distributor’s obligations
under this Section 2.5(b) will be at no cost to SPT.
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2.6
Data Ownership and Collection.
(a)
SPT will not collect information about SPT end users’ activities within any Distributor
Device, other than any information provided or otherwise obtained within any SPT Application. As
between the Parties, SPT will own all data collected by SPT.
(b)
Distributor will not collect or otherwise access any information provided or otherwise
obtained within any SPT Application.
2.7
Security Requirements. Distributor will ensure that each Distributor Device includes the
security requirements listed on Exhibit B attached hereto, which will be updated by SPT, in its discretion,
from time to time (the “SPT Security Requirements”).
SECTION 3.
TERM.
3.1
Term. The “Initial Term” of this Agreement will commence on the Effective Date and
continue for a period of two (2) years. Following the Initial Term, this Agreement will renew for
successive one (1) year periods (each, a “Renewal Term,” and, together with the Initial Term, the
“Term”) upon the mutual written consent of the Parties. The Term will be subject to the automatic
termination set forth in Section 2.1(b) and any early termination rights set forth in Section 7 below.
3.2
Post Term Wind-Down. At SPT’s discretion, for a period of six (6) months following
expiration or termination of this Agreement (the “Post Term Wind-Down Period”), (a) SPT and
Distributor will continue to make available each SPT Application on Distributor Devices to those users
who have downloaded such SPT Application prior to such expiration or termination, and all rights and
licenses under this Agreement necessary in connection with the foregoing will survive during the Post
Term Wind-Down Period and (b) Distributor will assist SPT in providing support and maintenance,
including any fixes, updates and/or enhancements, to such SPT Application on Distributor Devices.
SECTION 4.
NO SUBSCRIPTIONS, REVENUE SHARE, OR REFERRAL FEE.
4.1
No Fees. The Distributor acknowledges and agrees that SPT shall not owe, nor pay,
Distributor any subscriptions, revenue share, or referral fees for the distribution of any SPT Application
on the Distributor Devices.
SECTION 5.
INTELLECTUAL PROPERTY.
5.1
Ownership. As between the Parties, (a) SPT reserves all right, title and interest in and to
the SPT Intellectual Property, and no title to or ownership of any of the SPT Intellectual Property is
transferred or otherwise granted to Distributor or any other person pursuant to this Agreement, and except
for the licenses granted herein, all other rights are reserved and (b) Distributor reserves all right, title and
interest in and to the Distributor Intellectual Property, and no title to or ownership of any of the
Distributor Intellectual Property is transferred or otherwise granted to SPT or any other person pursuant to
this Agreement, and except for the licenses granted herein, all other rights are reserved. For the
avoidance of doubt, the Custom Work shall be the sole property of SPT and SPT shall own such rights in
all media now known or hereafter devised throughout perpetuity. Distributor agrees to assign to SPT,
Distributor’s entire right and interest in the Custom Work, and will execute any documents in connection
therewith that SPT may reasonably request; provided that to the fullest extent permissible by applicable
law, any and all copyrightable aspects of the Custom Work shall be considered “works made for hire.”
Distributor agrees to enter into agreements with all of its employees, agents and contractors necessary to
establish SPT’s sole ownership in the Custom Work. Distributor hereby appoints SPT as its true and
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lawful attorney-in-fact with the right to execute assignments of and to register any and all rights to the
Custom Work. This appointment is coupled with an interest and shall survive termination of this
Agreement.
5.2
Joint Development. No technology or intellectual property developed pursuant to this
Agreement will be jointly developed by the Parties unless the Parties, prior to the beginning of any joint
development work, agree in writing as to each Party’s right, title and interest in, and obligations as to,
such joint technology or intellectual property.
5.3
License of Marks. During the Term and the Post Term Wind-Down Period, if any, and
within the Territory, and subject to the terms and conditions of this Agreement, each Party hereby grants
to the other Party the limited, non-exclusive, non-transferable (other than to sublicense to the licensee
Party’s affiliates, subject to approval from the licensing Party), royalty-free license to use, reproduce,
transmit, display, perform and distribute the licensing Party’s Marks supplied by the licensing Party
hereunder as is reasonably necessary to perform the licensee Party’s obligations under this Agreement.
Any and all goodwill arising in connection with the use of any Mark hereunder will inure to the sole
benefit of the owner of such Mark.
5.4
Approvals. Each Party’s use of the other Party’s Marks in accordance with this Section 5
will conform to written guidelines, if any, that are provided by the owner of the applicable Marks to the
other Party. In the event written guidelines are not provided, use of the other Party’s Marks will be
subject to the applicable owner’s prior written approval.
5.5
Compliance with Laws; Trademark Notices. Each Party’s use of the other Party’s Marks
will at all times be in compliance with all applicable federal, state, and local laws, rules and regulations,
and each Party will cause to appear on or with each use of any of the other’s Marks appropriate trademark
notices as may be required by law or reasonably specified in writing by the Marks’ owner.
SECTION 6.
6.1
MARKETING AND PUBLIC ANNOUNCEMENTS.
Marketing.
(a)
Distributor will market and promote any SPT Service on Distributor Devices in
accordance with Exhibit A attached hereto.
(b)
Other than as set forth in this Section 6.1, each Party will be responsible for its own
advertising, marketing, and promotion relating to any SPT Service on Distributor Devices.
6.2
Marketing Materials. Each Party will submit all marketing, advertising and promotional
materials referencing any SPT Service on Distributor Devices to the other Party and will not distribute
such materials unless and until the other Party has approved them in writing.
6.3
Public Announcements. Neither Party will issue any press release or make any
substantially similar public announcement relating to the transactions between SPT and Distributor
pursuant to this Agreement without the express prior consent of the other Party.
SECTION 7.
TERMINATION; EFFECT OF TERMINATION.
7.1
Termination. Each Party will have the right to terminate this Agreement upon written
notice to the other Party if the other Party is in material breach of its obligations under this Agreement
and has not cured such breach within thirty (30) calendar days of written notice thereof. Additionally,
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either party will have the right to terminate this Agreement in the event that SPT elects to terminate any
SPT Service on such SPT Website and all other platforms and devices, including the Distributor Devices.
7.2
Effect of Termination. Except as expressly provided herein and Section 3.2, upon
expiration or termination of this Agreement: (a) all rights and licenses granted hereunder will terminate
immediately; (b) each of SPT and Distributor will immediately cease using any of the Distributor
Intellectual Property and SPT Intellectual Property, respectively and (c) each Party will return to the other
Party or destroy all Confidential Information and all other property belonging to and/or received from the
other Party. Any termination pursuant to Section 2.1(b) or this Section 7 will be without any liability or
obligation of the terminating Party, other than with respect to any breach of this Agreement prior to such
termination.
SECTION 8.
CONFIDENTIAL INFORMATION. All Confidential Information disclosed by one
Party to the other will be owned by and remain, as between the Parties, the sole property of the disclosing
Party. Other than as required by law, governmental authority or to enforce its rights hereunder, neither
Party will, without the express written consent of the other, reveal or otherwise use the other Party’s
Confidential Information, except to its shareholders, directors, officers, employees and representatives on
a “need-to-know” basis. Notwithstanding the foregoing, either party may disclose the terms of this
Agreement to potential investors, and to its professional advisors, so long as said potential investors and
professional advisors are subject to confidentiality requirements that are at least as restrictive as those set
forth herein. This Section 8 does not apply to any information that: (a) the receiving Party can
demonstrate that it possessed prior to the date of this Agreement without obligation of confidentiality; (b)
the receiving Party develops independently without use of any Confidential Information; (c) the receiving
Party rightfully receives from a third party, lawfully in possession of such information, without any
obligation of confidentiality to the other Party or (d) is or becomes publicly available without breach of
this Agreement.
SECTION 9.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL
EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, PUNITIVE,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES
ARE FORESEEABLE OR THAT PARTY HAS BEEN ADVISED OR HAS CONSTRUCTIVE
KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS
AGREEMENT. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE
FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SECTION 10.
REPRESENTATIONS AND WARRANTIES.
10.1
Generally. Each Party represents, warrants and covenants that: (a) it has and will comply
with all applicable laws, rules and regulations, and will satisfy all obligations owed to third parties and/or
any governmental authority, in connection with the performance of its obligations hereunder; (b) it is duly
organized, validly existing and in good standing under the laws of its state of organization; and (c) it has
full power and authority, and all other rights, licenses and authorizations required, to execute and deliver
this Agreement, to perform its obligations set forth herein, and to grant all rights granted herein.
10.2
DISCLAIMER OF WARRANTY. EXCEPT FOR THE COVENANTS,
OBLIGATIONS, REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY, AND BOTH PARTIES EXPRESSLY DISCLAIM
ALL, OTHER REPRESENTATIONS AND WARRANTIES (INCLUDING WITH RESPECT TO ALL
GOODS OR SERVICES OF SUCH PARTY), INCLUDING ALL STATUTORY AND IMPLIED
WARRANTIES, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE OR USE, ALL WARRANTIES THAT ITS SYSTEMS SHALL BE
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UNINTERRUPTED OR ERROR FREE, AND ALL WARRANTIES ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING, AND USAGE OF TRADE, OR THEIR EQUIVALENTS
UNDER THE LAWS OF ANY JURISDICTION.
SECTION 11.
INDEMNIFICATION.
11.1
Mutual Indemnification. Each Party hereby agrees to indemnify, defend, and hold the
other Party harmless from and against any and all third-party claims, demands, costs, liabilities, losses,
expenses and damages (including reasonable attorneys’ fees, costs, and expert witnesses’ fees) to the
extent arising out of or related to (a) a breach by the indemnifying Party of any of its representations,
warranties or covenants set forth in this Agreement and (b) misrepresentation, fraud or false advertising in
connection with the indemnifying Party’s marketing of any SPT Application on Distributor Devices
(provided such misrepresentation, fraud or false advertising was not based on materials or information
provided to the indemnifying Party by the other Party).
11.2
Additional SPT Indemnification. SPT further agrees to indemnify, defend and hold
Distributor harmless from and against any and all third-party claims, demands, costs, liabilities, losses,
expenses and damages (including reasonable attorneys’ fees, costs, and expert witnesses’ fees) to the
extent arising out of or related to any SPT Application (excluding the Custom Work), including the
infringement upon or misappropriation of any third-party trade secrets, copyrights, trademarks, patents,
publicity, privacy or other proprietary rights in the Territory by the SPT Intellectual Property.
11.3
Additional Distributor Indemnification. Distributor further agrees to indemnify, defend
and hold SPT harmless from and against any and all third-party claims, demands, costs, liabilities, losses,
expenses and damages (including reasonable attorneys’ fees, costs, and expert witnesses’ fees) to the
extent arising out of or related to the Custom Work and any Distributor Device, including the
infringement upon or misappropriation of any third-party trade secrets, copyrights, trademarks, patents,
publicity, privacy or other proprietary rights in the Territory by the Distributor Intellectual Property.
SECTION 12.
MISCELLANEOUS.
12.1
Choice of Law; Arbitration. This Agreement will be governed by the laws of the State of
California without regard to any choice of law or conflict of law provisions or rules. 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 Los Angeles, California,
U.S.A., in the English language in accordance with the provisions below.
(a)
Each arbitration shall be conducted by an arbitral tribunal (the “Arbitral Board”)
consisting of three (3) arbitrators who shall be retired judges knowledgeable in commercial matters, one
chosen by each of the parties within thirty (30) days of notice of arbitration and one chosen by the two (2)
arbitrators selected by the parties. If the parties fail to mutually agree upon the third arbitrator within
thirty (30) days of the selection of both such arbitrators, then the third arbitrator shall be selected in
accordance with the Rules. The third 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
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enforceable under applicable law. The parties shall be entitled to conduct discovery in accordance with
Section 1283.05 of the California 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.
(b)
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 County
Superior Court or, in the case of Distributor, such other court having jurisdiction over Distributor, 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
California Court of Appeal reviewing a judgment of the Los Angeles County 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 County Superior Court or,
in the case of Distributor, such other court having jurisdiction over Distributor, 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.
(c)
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 County, California or, if sought by SPT, such other court that may have jurisdiction over
Distributor, 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, Distributor, 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 SPT, its parents, subsidiaries and affiliates, or the use, publication or dissemination of
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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.
12.2
Notices. Any notice, request or demand given hereunder will be in writing and delivered
by certified or registered mail with return receipt requested and postage/charges prepaid, or courier, or by
facsimile, at the addresses or fax number listed below or such other address or fax number that a Party
designates by written notice to the other:
If to Distributor:
Fanhattan, LLC
489 S. El Camino
San Mateo, CA 94402
Attention: Laura Tunberg
If to SPT:
Sony Pictures Television Inc.
10202 W. Washington Blvd.
Culver City, CA 90232
Attention: Executive Vice President, Legal Affairs
Fax #: 1-310-244-2169
With a copy to:
Sony Pictures Entertainment Inc.
10202 West Washington Boulevard, Culver City, CA 90232
Attention: General Counsel
Fax #: 1-310-244-0510
Notice given by facsimile shall be deemed given upon delivery and notice given by overnight delivery or
courier service shall be deemed given the first business day following the business day of delivery to the
overnight delivery service.
12.3
Assignment; Successors. Neither Party may assign (whether by merger, acquisition,
consolidation, operation of law or otherwise) any of its rights or obligations under this Agreement without
the prior written consent of the other Party (not to be unreasonably withheld); provided, however, that
SPT may assign this Agreement (a) to an affiliate; (b) to an acquirer in connection with any merger,
consolidation, or sale of all or substantially all of SPT’s assets or (c) in connection with any transaction or
series of transactions resulting in a change of control of SPT. Any attempt to assign or transfer this
Agreement other than in accordance with this Section 12.3 will be null and void. Subject to the
foregoing, this Agreement will be binding on each Party and its respective successors and assigns.
12.4
Entire Agreement; Amendment; Remedies Cumulative; Construction. This Agreement,
together with all exhibits referenced herein and attached hereto, embodies the entire and exclusive
understanding of the Parties with respect to the subject matter hereof, constitutes a binding agreement of
the Parties upon the execution hereof, and supersedes all prior written or oral commitments,
arrangements, or understandings with respect thereto. No Party has relied on any statement,
representation, warranty, or promise not expressly contained in this Agreement. No change, amendment,
or modification of any provision of this Agreement will be valid unless set forth in a written instrument
signed by the Party subject to enforcement thereof. The failure of one Party to enforce any of the
provisions of this Agreement, or the failure to require at any time the performance of the other Party of
any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of
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such provisions (or any other provision), nor in any way affect the ability of a Party to enforce each and
every provision thereafter. If any provision of this Agreement is found unenforceable, invalid, or
otherwise contrary to law, it and any related provisions will be interpreted to best accomplish the
unenforceable provision’s essential purpose, and all other provisions hereof will continue in full force.
All remedies, rights, undertakings, obligations and agreements contained in this Agreement will be
cumulative and none of them, nor the exercise or failure to exercise any of them, will be in limitation of
any other remedy, right, undertaking, obligation, or agreement of either Party. The Parties are
independent contractors, and this Agreement does not create an agency, partnership or joint venture.
Each Party will be solely responsible for remitting to the appropriate taxing authority any payments, taxes
and deductions required by applicable federal, state, local and foreign laws and regulations. There are no
third-party beneficiaries to this Agreement. The headings and titles of the provisions of this Agreement
are inserted for convenience of the Parties only and will not affect the construction or interpretation of
any provision hereof.
12.5
Survival. Upon the effective date of any termination or expiration of this Agreement,
Sections 1 (Definitions), 2.6 (Data Ownership and Collection), 3.2 (Post Term Wind-Down), 5.1
(Ownership), 6.3 (Public Announcements), 7.2 (Effect of Termination), 8 (Confidential Information), 9
(Limitation of Liability), 11 (Indemnification), and 12 (Miscellaneous) herein, and any other provision
that, by its terms, is intended to survive the expiration or termination of this Agreement, will remain in
full force and effect.
12.6
Counterparts. This Agreement may be executed in several counterparts, each of which
will be deemed an original and all of which together will constitute one and the same document.
Signatures delivered via facsimile or other electronic delivery (e.g., PDF) will be deemed original
signatures.
(Signature Page Follows)
10
IN WITNESS WHEREOF, each of the Parties hereto has executed this Agreement as of the
Effective Date.
SPT:
DISTRIBUTOR:
SONY PICTURES TELEVISION INC.
FANHATTAN, LLC
By:
By:
Name:
Name: Laura Tunberg
Title
Title: Head of Business & Legal Affairs
Application Distribution Agreement
EXHIBIT A
FEATURED MARKETING OF SPT SERVICE
The Crackle icon will appear in the Fanhattan user interface and will at all times receive equal or more
favorable placement in the user interface than icons for similarly situated video service providers.
1. Consumer Marketing – In its consumer marketing campaigns, Fanhattan will use best efforts to
feature Crackle (logo, screenshots, etc.) as it aligns to the creative direction of the campaign.
Fanhattan will obtain the prior written approval of SPT with respect to all such marketing
campaigns.
2. Public Relations and Press Outreach – Fanhattan will feature Crackle in public relations and
press outreach as a featured partner, all such public relations and press shall receive the prior
written approval of SPT. The use of the Crackle logo, screenshots, and other Crackle assets will
be closely integrated into the Fanhattan presskit and asset packet upon SPT’s prior written
approval.
3. Fanhattan Website – Fanhattan will promote Crackle as a partner on Fanhattan.com
4. Merchandising – Fanhattan will use best efforts to feature and promote Crackle both online and
on it’s physical merchandising (retail, packaging, etc.). Fanhattan will obtain the prior written
approval of SPT with respect to all such online and physical merchandising.
EXHIBIT B
SECURITY REQUIREMENTS
Digital video outputs: industry-standard commercial output protection, including, but not limited to,
HDCP over HDMI.
Analog video outputs: CGMS-A signaling on all such analog outputs for which a solution has been
defined.
Widevine Level 1 support for all Android Distributor Devices.