License Agreement

REALNETWORKS LICENSE AGREEMENT



THIS REALNETWORKS LICENSE AGREEMENT (this "Agreement" or the "RN License Agreement") is made and entered into as of the 1st day of January, 1998 (the "Effective Date"), by and between AudioNet, Inc., a Delaware corporation and RealNetworks, Inc., a Washington corporation ("RN").



WHEREAS, RN is the owner of certain server technology and software [*] [*] (as so described, the "RN Software"). The RN Software shall include [*]



WHEREAS, AudioNet is the business of, among other things, the support, implementation, deployment and delivery of AudioNet's current and future Internet-based products and services; and



WHEREAS, AudioNet desires to use the RN Software in connection with [*]

NOW, THEREFORE, AudioNet and RN hav e reached certain agreements with respect to the licensing of the RN Software by AudioNet upon the terms and conditions more particularly described herein; and, inasmuch as the parties desire to set forth their agreements and understandings in writing, in consideration of the promises, covenants and matters hereinafter set forth, the parties mutually covenant, contract and agree, each with the other, as follows:



1. LICENSE.



(a) License to RN Software. RN hereby grants to AudioNet, for the Term (as defined in Section 9(a)), a [*] license to:



(i) reproduce and install up to [*] copies of the RN

Software and associated "Documentation," on AudioNet servers (the

"AudioNet Servers") for the purpose of [*]; [*]



(ii) deliver up to [*] simultaneous "User-Streams"

[*]









* Confidential Treatment Requested (iii) [*] AudioNet agrees to inform RN of the mechanisms it

intends to implement for monitoring its use of the RN Software and

delivery of User-Streams to ensure that it does not exceed authorized

User-Stream or RN Software counts, and will cooperate with RN to ensure

that such mechanism is acceptable to RN; and



(iv) [*]



Under no circumstances may AudioNet: [*]



(b) [*]. RN hereby grants [*]



(c) [*]. RN hereby grants to AudioNet [*]



(d) Delivery of Upgrades, Etc. RN shall promptly (and in no event later than RN makes the following available to RN hosting customers) deliver to AudioNet any upgrades, updates, enhancements, additions, improvements, successor versions, modifications, maintenance releases, bug fix es and corrections to the RN Software licensed hereunder and the associated Documentation commercially released during the Term. RN shall also provide AudioNet with the technical assistance and support as set forth on Exhibit B.



(e) No Reverse Engineering. AudioNet shall not attempt to reverse engineer, disassemble or decompile the RN Software, or create derivative works based thereon, or otherwise seek to reconstruct the source code of RN Software.



(f) Ownership. RN shall retain all right, title and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights) in the RN Software. Except as expressly





* Confidential Treatment Requested



licensed to AudioNet in this Section 1, AudioNet shall not acquire any interest in the RN Software or any other RN software and technologies, or any copies or portions thereof



(g) Records. AudioNet shall keep accurate records relating to the RN Software to the extent necessary to determine compliance with restrictions on the use of the RN Software contained herein. [*]. Upon not less than fifteen (15) days prior written notice, such records shall be made available for inspection to RN in Audi oNet's offices during normal business hours.



(h) RN SDKs. Upon the execution of this Agreement, the parties agree to engage in good faith negotiations with regard to the terms and conditions pursuant to which RN may grant a license to AudioNet to use RN's SDKs to integrate RN software and technologies with non-RN software and technologies.



* Confidential Treatment Requested



2. TRADEMARKS.



(a) Notices. For so long as AudioNet is using the RN Software, AudioNet shall place notices on the AudioNet web site in locations reasonably requested by RN which notice shall read substantially as follows: "The RealServer is included under license from RealNetworks, Inc. RealAudio, RealVideo and the Real logo are trademarks or re g istered trademarks of RealNetworks, Inc. RealPlayer, RealServer, and other marks are trademarks of RealNetworks, Inc. Copyright 1995-1998. RealNetworks, Inc. All rights reserved." AudioNet shall place one or more RN Marks on each of its web sites in reaso nably prominent locations or other locations reasonably requested by RN and agreed to by AudioNet and shall display such marks any time files link to AudioNet Content that has been encoded in RN formats.



(b) License to RN Marks. AudioNet ackno wledges that RN, RealAudio, RealVideo, the Real logo, RealPlayer, RealServer, and other marks used by RN (the "RN Marks") are trademarks of RN. RN hereby grants to AudioNet for the Term a nonexclusive, nontransferable, non-assignable, license to use, and A udioNet agrees to, the RN Marks in connection with the advertising, marketing, promotion and rendering of the AudioNet Services when using or referencing the RN Software AudioNet's use of the RN Marks shall be in accordance with RN's policies regarding ad v ertising and trademark usage as set forth on Exhibit C hereto and on RN's website at http://www.real.com/corporate/logos, as updated from time to time. AudioNet acknowledges that its use of any of the RN Marks in connection with this Agreement shall not create any right, title or interest, in or to the RN Marks (except as expressly licensed to AudioNet in this Section 2(b)) and that all goodwill associated with the RN Marks shall inure to the benefit of RN.



3. LICENSE FEE.



(a) Calculation of License Fee. In consideration for the license granted hereunder, AudioNet agrees to pay RN during the Term the greater of: (a) [*]



(b) Payment. The License Fee shall be payable once each calendar quarter within 45 days of the e nd of the calendar quarters ending on March 31, June 30 and September 30 and within 90 days of the end of the calendar quarter ending on December 31. AudioNet's financial statements shall be audited yearly by a nationally recognized firm of accountants an d the License Fee payable for the calendar quarter ending December 31 shall be adjusted for AudioNet's net revenue as set forth in the audited financial statements for the year then ended.



(c) Audit. RN shall have the right to have an inspecti on and audit [*] for one year from the expiration or termination of this Agreement. Such audit shall be conducted at RNs expense (subject to the last sentence hereof) during regular business hours at AudioNet's offices and, for purposes of inspecting the R N Software, at other locations where AudioNet owns, leases or provides servers on which the RN Software may reside in such a manner as to not interfere with AudioNet's normal business activities. In no event shall audits be made hereunder more frequently than every year. [*]



4. OTHER RN OBLIGATIONS.





* Confidential Treatment Requested



(a) Support. During the Term, RN shall provide AudioNet with reasonable support consistent with the support levels provided by RN to direct hosting and/or large scale broadcast customers as set forth on Exhibit B. [*]



(b) [*]



(c) Training by RN. RN shall provide, without charge, up to three (3) days of training in the use of the RN Software to AudioNet personnel at RN's headquarters in Seattle, Washington, and two (2) days of training at AudioNet's headquarters in Dallas, Texas, on dates to be mutually agreed upon. RN shall also provide to AudioNet, at AudioNet's request and cost, at RN's facility, and on dates to be mutually agreed upon, additional training in the use of the RN Software. AudioNet may also attend g e neral training sessions that RN provides to the public, provided that AudioNet shall provide RN reasonable notice of its intent to attend such training and shall limit attendance to no more than four (4) AudioNet personnel at any one general training sess i on. AudioNet may send additional personnel to such training at the cost of $200 per person. AudioNet shall be responsible for all travel, lodging and other personal out-of-pocket expenses incurred by its personnel in connection with any training. If Audio N et desires to receive additional training at AudioNet's facilities, it shall provide reasonable notice to RN for coordination of mutually acceptable dates, shall pay RN's current standard rate for on-site training, and shall reimburse RN for its travel, l odging and other personal out-of-pocket expenses incurred by its personnel in connection with such training.



(d) [*]



(e) Regular Communications. The parties shall engage in regular communications to discuss matters of ongoing imp ortance under this Agreement. The parties shall meet in person at least once per quarter, and shall have frequent telephone conversations as needed.



5. RN SOFTWARE WARRANTY.



(a) Limited RN Software Warranty. RN warrants, solely for the benefit of AudioNet, that for a period of ninety (90) days from the Effective Date (or the date of delivery to AudioNet for future released versions, if any, of RN Software made during the term hereof): (i) the final or "Gold" version of the RN S o ftware, if operated as directed, will substantially achieve the functionality described in the Documentation; and (ii) that the media containing the Gold version of the RN Software, if provided by RN, is free in material respects from defects in material a nd workmanship; provided, however, that the foregoing warranty is expressly contingent (and shall be otherwise void) upon: (A) the use of the RN Software strictly in accordance with the instructions and Documentation therefor; (B) the absence of misuse or damage thereto; and (C) the absence of any alteration or modification thereto. RN makes no warranty that AudioNet's use of the RN Software will be uninterrupted or that the operation of the RN Software will be error-free or secure. In no case will RN be l i able for any representation or warranty made to any third party by AudioNet. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RN AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIE S OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE RN SOFTWARE.



* Confidential Treatment Requested



(b) Remedies. RN's sole liability for any failure of the warranty contained in Section 5(a) shall be, in RN's sole discr etion: (i) to replace AudioNet's defective media with fully functioning media; or (ii) to advise AudioNet how to achieve substantially the same functionality with the RN Software as described in the Documentation through a procedure different from that se t forth in the Documentation. Only if AudioNet informs RN of the problem with the RN Software during the applicable warranty period will RN be obligated to honor this limited warranty.



6. INDEMNITY



[*]



7. REPRESENTATIONS AND WARRANTIES OF AUDIONET.



AudioNet hereby represents and warrants to RN that, as of the date hereof:



(a) Organization and Good Standing; Corporate Power. AudioNet is a corporation duly organized and validly existing under the laws of the State of Delaware, and is in good standing under such laws, and has all necessary licenses and permits required by all governmental authorities to carry on its business, except where the failure to have obtained such licenses and permits would not have a material adverse effect on AudioNet. AudioNet has all requisite legal and corporate power to own, lease and operate its property and assets, to carry on its business as presently conducted, to enter into this Agreement and to carry out and perf orm its obligations under the terms of this Agreement.



(b) Authorization. The execution and delivery of this Agreement and the performance of its obligations hereunder, has been duly authorized by all necessary corporate action of AudioNet. Th is Agreement constitutes a legal, valid and binding obligation of AudioNet enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws of general application affec ting the rights and remedies of creditors, as well as general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).



8. REPRESENTATIONS AND WARRANTIES OF RN.



RN hereby represents and warrants to AudioNet that, as of the date hereof:



(a) Organization and Good Standing; Corporate Power. RN is a corporation duly organized and validly existing under the laws of the State of Washington, and is in good standing under such laws, and has all necessary licenses and permits required by all governmental authorities to carry on its business, except where the failure to be so qualified or to have obtained such licenses and permits would not have a mat e rial adverse effect on RN. RN has all requisite legal and corporate power to own, lease and operate its property and assets, to carry on its business as presently conducted, to enter into this Agreement and to carry out and perform its obligations under t he terms of this Agreement.



(b) Authorization. The execution and delivery of this Agreement and the performance of its obligations hereunder, has been duly authorized by all necessary corporate action of RN. This Agreement constitutes a legal, valid and binding obligation of RN enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting the rights and remedies of credito rs, as well as general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).



9. TERM AND TERMINATION.



(a) Term. [*]



(b) Termination for Breach. This Agr eement may be terminated by either party only for cause immediately by written notice upon the occurrence of any of the following events: (i) if the other ceases to do business, or otherwise terminates its business; (ii) if the other breaches any material provision of this Agreement [*] and fails to fully cure such breach within forty-five (45) days' of written notice describing the breach; or (iii) if the other becomes insolvent or seeks protection under any bankruptcy, receivership, trust, deed, creditor 's arrangement, or comparable proceeding, or if any such proceeding is instituted against the other and not dismissed within forty-five (45) days.



* Confidential Treatment Requested



(c) Effect of Termination.



(i) Expiration. Upon the expiration of the Term, AudioNet shall have the following options:



(a) [*]



(b) [*]



(c) [*]



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