ATRINSIC

    MARKETING
SERVICES AGREEMENT

    


    THIS MARKETING SERVICES
AGREEMENT (this “Agreement”) is
entered into as of March 26, 2010 and effective as of July 1, 2009 (the “Effective Date”) by
and between Brilliant Digital
Entertainment, Inc., a Delaware corporation, with its principal place of
business located at 12711 Ventura Boulevard, Suite 210, Studio City, California
91604 (together with and on behalf of its subsidiaries, including but not
limited to Altnet, Inc., a Delaware corporation, “BDE”) and Atrinsic, Inc., a Delaware
corporation, with its principal place of business located at 469 7th Avenue,
10th
Floor, New York, NY 10018 (“Atrinsic.”).

     

    WHEREAS, Atrinsic is engaged
in the business of providing marketing services to drive mobile and local
exchange carrier phone subscribers to mobile and web-based properties with the
goal of generating leads, registrations and sales;

    


    WHEREAS, BDE desires to create
a new online channel, product and service providing its end-users, buyers and
customers (“Subscriber(s)”) with
content subscription services to be billed through a mobile content aggregator,
local exchange carrier, credit card company or any other provider of
direct-to-consumer billing and collection services; and

    


    WHEREAS, BDE desires to engage
Atrinsic to perform certain marketing services for BDE to promote, advertise and
market BDE’s content subscription service.

    


    NOW, THEREFORE, in
consideration of the foregoing premises and the covenants hereinafter contained
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:

    


    1.           Definitions:

    


    1.1.      Ancillary Websites.
Ancillary Websites shall be defined as websites, other than the Website or any
other website operating under the Brand, offering, referring or in any way
advertising or marketing the Brand, Website or Content Services;

    


    1.2.      Brand. Brand shall be
defined as the following trade name, trademark, domain name or other fictitious
business name of Kazaa.

    


    1.3.      Confidential
Information. Confidential Information shall be defined as any and all
information designated “Confidential” by either party or disclosed during the
Term and/or the negotiation of the same by one party to the other party, which
is or should be reasonably understood to be confidential and/or proprietary
including, without limitation, the material terms of this Agreement (including
pricing), financial information, product, service and business plans, customer
information, vendor and other business relationship information, and projections
and marketing data.


    
      
         


      

      
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    1.4.      Confirmed Lead.
Confirmed Lead shall be defined as a Subscriber who actively confirms his or her
purchase or subscription of Content Services by use of such Content Services,
directly or indirectly, in response to any communication or other means employed
by or on behalf of Atrinsic in performing the Marketing Services.

    


    1.5.      Content Services.
Content Services shall be defined as all products and services offered or
provided by BDE in connection with its content subscription
service.

    


    1.6.      Marketing Services.
Marketing Services shall be defined as those certain promotion, advertising and
marketing services with respect to the Website, Brand and Content Services
including, but not limited to, ad creation, copywriting, media bidding,
tracking, and reporting services, lead generation services, ROI tracking and
conversion rate monitoring and channel strategy, Search Engine Optimization,
search engine marketing, display marketing (including web banner
advertisements), email marketing, PPC and other forms of internet media
marketing.  .

    


    1.7.      Organic Search.
Organic Search shall be defined as traffic or search results that are generated
from a search engine’s algorithm and not from advertisements or
sponsorships.

    


    1.8.      Search Engine
Optimization. Search Engine Optimization shall be defined as the process
of improving the volume of potential Subscribers who visit a website listed in
the Organic Search results generated by search engines.

    


    1.9.      Website. Website
shall be defined as the website, located at www.kazaa.com,
operated by or for BDE to market and/or provide or otherwise make available the
Content Services.

    


    2.           Exclusivity and
Services.

    


    2.1.      Exclusivity. Subject
to the terms and conditions of this Agreement, BDE hereby grants to Atrinsic any
and all licenses, rights and permissions necessary for Atrinsic to perform the
Marketing Services during the Term.  Subject to the Airarena Agreement
(as defined below), Atrinsic shall be the exclusive provider of the Marketing
Services to BDE and, during the Term, BDE shall not engage in any discussions or
negotiations or enter into any agreement with any other party for the provision
of services which are the same as or similar to the Marketing Services;
provided, however, the parties acknowledge and agree that certain of the
Marketing Services shall be provided by Airarena Pty Ltd. as provided in the
Management Services Agreement between BDE and Airarena Pty Ltd. in substantially
the form attached hereto as Exhibit A (the “Airarena
Agreement”).


    
      
         


      

      
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    2.2.      Marketing Services.
During the Term, Atrinsic shall be responsible for all Marketing Services,
strategy, development, execution and development and operation of the Ancillary
Websites and for the development and distribution of advertisements in
connection with the Marketing Services; provided, however, that the parties
acknowledge and agree than certain of the Marketing Services shall instead be
provided pursuant to the Airarena Agreement. Creative designs for any such
advertisements developed by Atrinsic, must be affirmatively preapproved by BDE
in writing, by email or by facsimile, which approval shall not be unreasonably
withheld or delayed.  Except as provided in the Airarena Agreement,
Atrinsic shall have the exclusive right to place advertisements for the Content
Services on the Ancillary Websites.  Atrinsic shall provide the
Marketing Services in compliance with all applicable Federal Trade Commission
(“FTC”) Rules
and Regulations, the CAN-SPAM Act of 2003 (the “CAN-SPAM Act”),
Mobile Marketing Association (“MMA”) Guidelines and
other applicable state and federal laws, each as amended and current at the time
of the applicable Marketing Services.  Additionally, Atrinsic shall
use its commercially reasonable efforts to provide the Marketing Services in a
manner such that BDE and its Content Services offerings are not listed on the
“blacklists” of anti-spam service providers such as McAfee; in the event BDE
and/or its Content Services are included on such a list, Atrinsic shall use its
best efforts to remove BDE from such list within thirty days.  BDE
shall provide Atrinsic with any and all information, materials, products and
services needed to perform its obligations hereunder.

    


    3.           Payment
Terms.

    


    3.1.      Performance
Fees.  Atrinsic shall pay to BDE advances equal to the amount
of pre-approved and mututally agreed costs and expenses incurred by BDE in connection with the provision of
Marketing Services pursuant to the Airarena Agreement during the Term of
this Agreement (the “Advances”). The
Advances shall be recoupable, on a dollar for dollar basis, as provided
below.  Notwithstanding anything contained herein to the contrary, in
no event shall Atrinsic be required to make any Advances, incur any cost,
expense, charge or fee hereunder or advance any funds to BDE or any third party
in respect of any Marketing Services or otherwise if greater than $5,000,000 (or
such other amount as mutually agreed in writing) remains unrecouped by Atrinsic
and/or unpaid to Atrinsic pursuant to Sections 3.1 or 8 of this Agreement or
Sections 5.2.3 or 5.3 of the Master Services Agreement between Atrinsic and BDE
of even date herewith (“Master Services
Agreement”).  BDE shall pay to Atrinsic a marketing fee
(collectively, the “Fee”) as follows:  (i) all amounts noted in the
pre-approved Marketing Service budget plans presented by Atrinsic in advance,
which include a detailed marketing budget and a targeted CPA; plus (ii) any
pre-approved direct costs related to the Marketing Services, including but not
limited to all Advances.  For the period beginning on the Effective
Date through August 31, 2009, the “Fees” with respect to such period shall be
determined between the parties in good faith (without regard to the process
noted above), which such Fees shall be determined by August 30,
2009.  Within thirty (30) days following the last day of each calendar
month, Atrinsic shall provide to BDE a written report stating the number of
Confirmed Leads provided by Atrinsic during the preceding month and calculating
the aggregate Fees (the “Report”).  Representatives of Atrinsic and
BDE shall meet on a monthly basis to review the Report and discuss and determine
the projected and budgeted Fees and targeted number of Confirmed Leads for the
following month, which such Fees may not be exceeded by Atrinsic without the
approval of BDE.  In the event BDE disputes the accuracy of the
Confirmed Leads or the calculation of any Fee, BDE must notify Atrinsic of such
dispute within 30 days following the delivery of the
Report.  Thereafter, the Report shall be deemed accepted by
BDE.  The parties will use their commercially reasonable efforts to
resolve such dispute prior to the date such Fees are due; provided, however, in
the event that such dispute is not resolved, the reported Fees shall remain due
and payable.  Fees not otherwise recouped by Atrinsic pursuant to the
Master Services Agreement (the “Unrecouped Fees”)
shall be due and payable by BDE within one hundred eighty (180) days after the
Report date, or such longer period of time after the Report date as Atrinsic may
agree to in its sole and absolute discretion, and shall be secured pursuant to
the terms of that certain Security Agreement by and between BDE and Atrinsic of
even date herewith.  Notwithstanding the foregoing, in no event shall
BDE be required to pay any Unrecouped Fees in excess of $2,500,000 in the
aggregate (less any other amounts paid to Atrinsic as ‘Unrecouped Amounts’
pursuant to the Master Services Agreement).


    
      
         


      

      
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    3.2.      Books and
Records.  During the Term and for at least two (2) years
thereafter, BDE shall keep true and accurate books of account and records in
accordance with generally accepted accounting principles, consistently applied,
pertaining to the Content Services.

    


    3.3.      Audits. In addition
to the rights provided in Section 3.1 to dispute any particular invoice for
Fees, during the Term and for two (2) years following the expiration or
termination of this Agreement, BDE shall have the right to appoint an
independent auditor to conduct an inspection and audit of relevant records in
order to verify the correctness of the Confirmed Leads reported by Atrinsic and
Atrinsic shall promptly pay BDE the amount of any underpayment revealed by the
audit; provided that, (i) such audits are conducted at reasonable times during
regular business hours and with reasonable advance written notice, (ii) such
audits are conducted not more than once every year, (iii) BDE shall be
responsible for payment of all fees and expenses associated with such audit,
unless the auditor finds a discrepancy of greater than ten percent (10%) of the
audited amount, in which event Atrinsic shall reimburse BDE the amount of the
audit fees and expenses, (iv) and the information and materials reviewed or
obtained in such audit shall be protected as Atrinsic’s Confidential Information
(defined below).

    


    4.           Intellectual
Property.

    


    4.1.      License Grant. BDE
hereby grants to Atrinsic a non-exclusive, royalty-free, sublicensable,
non-transferable license to use, reproduce and display the Brand and all other
trademarks, trade names, service marks, service names and logos proprietary to
or licensed by BDE that BDE provides to Atrinsic solely for use or display on
the Website and any Ancillary Websites and, subject to preapproval by BDE, in
connection with the provision of the Marketing Services, and any additions,
modifications, enhancements or other derivative works to the foregoing that may
be made by BDE from time to time and approved by BDE for use or display in
connection with the Marketing Services (“BDE
Marks”).  Atrinsic acknowledges that, as between Atrinsic and
BDE, BDE is the owner or licensee of all right, title and interest in and to the
BDE Marks and all intellectual property and proprietary rights therein
recognized anywhere in the world.  All goodwill derived from
Atrinsic’s use of the BDE Marks shall inure to the benefit of
BDE.


    
      
         


      

      
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    4.2.      Ownership of
Works.  All rights and proceeds of any and all ideas,
preliminary work, drafts, revisions, versions, polishing, and refinements, and
all copyrights, trademarks, patents and other intellectual property, and all
other tangible expressions thereof of whatever kind or nature including, without
limitation, software, computer programs and the like (hereinafter collectively
referred to as “Works”) developed by
or on behalf of Atrinsic or any of its sublicensees in performance of the
Marketing Services including, but not limited to, advertisements, creative, copy
and other promotional materials and the Ancillary Websites, as well as those
depicting, incorporating or based on the BDE Marks, Website, Brand and/or
Content Services ((in all cases other than the BDE Marks, Website, Brand and/or
Content Services themselves and the Customer Data (the ownership of which is
provided for in Section 5.1)), shall be deemed to be exclusively owned and
controlled by Atrinsic unless otherwise agreed in writing or any other agreement
between Atrinsic and BDE.  Atrinsic shall be deemed the author of the
Works and shall own all right, title, and interest throughout the universe in
perpetuity in and to said Works including, without limitation, all copyright,
patent, trademark and other intellectual property rights therein and all
renewals or extensions thereof, and the right to use, adapt and change said
Works and to prepare derivative works thereof.  Should BDE acquire any
rights in any of the Works or any part thereof BDE hereby agrees to assign, and
hereby irrevocably assigns to Atrinsic in perpetuity throughout the universe,
all right, title, and interest including without limitation, all copyrights,
patents and trademarks and all renewals and extensions thereof, all rights under
worldwide copyright or trademark laws or treaties, in and to the Works and all
portions thereof whether heretofore or hereafter created (other than the Brand,
BDE Marks, Website and/or Content Services and the Customer Data.

    


    5.           Customer
Data.

    


    5.1.      Ownership. BDE and
Atrinsic shall jointly own any and all Subscriber information collected by or
through the Website or in connection with the Content Services or any party
thereof during the Term (collectively, the “Customer
Data”).

    


    5.2.           Limitations.  At
all times, both during and after the Term, the parties shall not do any of the
following with respect to the Customer Data, or any part thereof (i) violate any
FTC Rule or Regulation, the CAN-SPAM Act, MMA Guidelines, privacy policy of the
Website of any Ancillary Website, or any other applicable laws, rules and
regulations or (ii) send more than one SMS marketing message per day containing
a BDE or Atrinsic proprietary offer, as applicable, without the prior written
consent of the other party.   For purposes of clarity, this
section only applies to the transmission of proprietary offers and shall not be
interpreted to limit Atrinsic’s right to send multiple SMS marketing messages
containing third party offers using the Customer Data, if agreed to by BDE. In
addition, SMS marketing messages sent using Customer Data, or any part thereof,
must include an opt-in and unsubscribe mechanism in accordance with applicable
FTC Rules and Regulations, the CAN-SPAM Act, MMA Guidelines, the privacy
policies of the Website and any Ancillary Website, as well as any other
applicable laws, rules and regulations.  Notwithstanding the above,
any marketing using Customer Data must be agreed to by both Parties prior to its
implementation.


    
      
         


      

      
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    6.           Representations and
Warranties.

    


    6.1.      BDE.  BDE
hereby represents and warrants to Atrinsic that (i) BDE is the sole and
exclusive owner of all of the right, title and interest in and to, or has a
valid license to use, any and all content and technologies contributed by BDE in
accordance with this Agreement, including but not limited to the Brand, the BDE
Marks, the Website and the Content Services (collectively, the “BDE Rights”), (ii)
BDE has not assigned or licensed, and will not during the Term assign or
license, in whole or in part, any of the BDE Rights in contravention of the
terms and conditions of this Agreement, (iii) to BDE’s knowledge, none of the
BDE Rights infringe on nor will infringe on any third party intellectual
property rights, (iv) BDE is not in breach of or default under any of the terms,
covenants or provisions relating to the use of the BDE Rights, and BDE knows of
no event which, but for the passage of time or the giving of notice or both,
would constitute such a breach or event of default, (v) BDE has not, and to
BDE’s knowledge no third
party has, commenced any action or given or received any notice with respect to
the BDE Rights and/or BDE’s use of any of the BDE Rights, (vi) BDE does not owe
any past-due fees or other costs to any affiliated party or other third party
with respect to the BDE Rights, (vii) BDE shall not, either directly or
indirectly, seek to register or use a domain name similar to an Ancillary
Website domain name or a trademark similar to an Ancillary Website domain name,
(viii) neither BDE’s execution of this Agreement nor entering into the
transactions contemplated by this Agreement contravene any other agreement or
transaction to which BDE is a party, and (ix) BDE has not violated any law, rule
or regulation with respect to its ownership, licensing and/or use of any of the
BDE Rights,

    


    6.2.      Atrinsic.  Atrinsic
hereby represents and warrants to BDE that (i) Atrinsic is the sole and
exclusive owner of all of the right, title and interest in and to or has a valid
license to use any contents and technologies contributed by Atrinsic in
accordance with this Agreement, including, without limitation, the Works,
(collectively, the “Atrinsic Rights”),
(ii) Atrinsic has not, and will not during the Term, assign or license, in whole
or in part, any of the Atrinsic Rights in contravention of the terms and
conditions of this Agreement, (iii) to Atrinsic’s knowledge, none of the
Atrinsic Rights infringes on any third party intellectual property rights, (iv)
Atrinsic is not in breach of or default under any of the terms, covenants or
provisions relating to the use of the Atrinsic Rights, and Atrinsic knows of no
event which, but for the passage of time or the giving of notice or both, would
constitute such a breach or event of default, (v) Atrinsic has not, and to
Atrinsic’s knowledge no third party has, commenced any action or given or
received any notice with respect to the Atrinsic Rights and/or Atrinsic’s use of
any of the Atrinsic Rights, (vi) Atrinsic does not owe any past-due fees or
other costs to any affiliated party or other third party with respect to the
Atrinsic Rights, (vii) neither Atrinsic’s execution of this Agreement nor
entering into the transactions contemplated by this Agreement contravene any
other agreement or transaction to which Atrinsic is a party, and (ix) Atrinsic
has not violated any law, rule or regulation with respect to its ownership,
licensing and/or use of any of the Atrinsic Rights.

    


    6.3.      Disclaimer of
Warranties. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1 AND TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MARKETING SERVICES ARE PROVIDED
ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND ATRINSIC MAKES NO WARRANTIES OF ANY
KIND WITH RESPECT TO THE MARKETING SERVICES OR THE RESULTS OR PROCEEDS
THEREOF,  AND DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF SATISFACTORY QUALITY MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT.


    
      
         


      

      
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    7.           Limitation of
Liability.  EXCEPT TO THE EXTENT OTHERWISE PROVIDED BY
APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS OFFICERS, DIRECTORS,
EMPLOYEES, OR AGENTS BE LIABLE TO THE OTHER PARTY UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I)
CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR INCIDENTAL DAMAGES OR ANY LOSS OF
PROFITS, LOSS OF BUSINESS OR LOSS OF USE EVEN IF SUCH PARTY HAS BEEN APPRISED OF
THE LIKELIHOOD OF SUCH DAMAGES OCCURRING, (II) THE COST OF PROCURING SUBSTITUTE
PRODUCTS OR SERVICES OR (III) ANY AMOUNT IN EXCESS OF THE AGGREGATE AMOUNTS PAID
OR PAYABLE BY BDE UNDER THIS AGREEMENT DURING THE TWELVE (12)-MONTH PERIOD PRIOR
TO THE DATE ON WHICH THE CLAIM OR CAUSE OF ACTION RESULTING IN LIABILITY
AROSE.

    


    8.           Indemnification.

    


    8.1.      Indemnification. BDE
and Atrinsic (each, an “Indemnifying Party”),
at its own cost and expense, hereby agrees to defend, indemnify and hold the
other party (“Other
Party”) and the Other Party’s shareholders, directors, officers,
employees, affiliates, successors, consultants, representatives, independent
contractors, contractors, subcontractors and agents (each, an “Indemnified Party”
and collectively, the “Indemnified Parties”)
harmless from and against any and all proceedings, demands, damages, suits,
judgments, settlements, claims, liabilities, causes of action, actions, costs
and expenses (including, without limitation, attorneys’ fees and costs) (each, a
“Claim”),
brought by a third party (including, but not limited to, a federal or state
regulatory agency) (each, a “Third Party
Assertion”) against an Indemnified Party that directly arises out of or
is made in connection with (i) Indemnifying Party’s breach of any representation
or warranty set forth in this Agreement, (ii) Indemnifying Party’s breach or
non-performance of any of its obligations pursuant to this Agreement, (iii)
Indemnifying Party’s misappropriation or infringement of the Other Party’s or
any third party’s intellectual property, (iv) Indemnifying Party’s or an
affiliated party’s fraud, willful misrepresentation, willful misconduct or
omission with respect to this Agreement or any product or service provided in
connection with this Agreement, (v) any violation by Indemnifying Party of (a) a
third party’s privacy or identity rights (including, but not limited to, the
privacy rights of children), and (c) any applicable privacy laws, regardless of
whether the Other Party had or should have had knowledge thereof, (vi) any
violation by Indemnifying Party of any law, rule or regulation with respect to
this Agreement or any product or service provided in connection this Agreement,
or (viii) in circumstances for which BDE is the Indemnifying Party, the Content
Services and any content, information, data, or messages provided directly or
indirectly by or on behalf of BDE, or a Subscriber using the Content Services
(whether transmitted on its own or on any third party’s
behalf).


    
      
         


      

      
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    8.2.      Control of Defense and
Costs. In the event an Indemnified Party seeks indemnification pursuant
to this Agreement, Indemnifying Party shall assume control of the defense of
such Third Party Assertion and in connection with such defense shall appoint
lead counsel (subject to the approval of the Indemnified Party, which shall not
be unreasonably withheld) for such defense, in each case at Indemnifying Party’s
sole cost and expense. Indemnifying Party shall not enter into any settlement or
compromise of any such Third Party Assertion without the applicable Indemnified
Party’s prior written consent, which consent shall not be unreasonably withheld.
Indemnifying Party shall pay any and all costs, fees, damages and expenses
including, but not limited to, reasonable attorneys’ fees and costs (including
appellate level) awarded against or otherwise incurred by an Indemnified Party
in connection with or arising from any Third Party Assertion. The existence or
non-existence of insurance shall in no manner affect Indemnifying Party’s
obligations under this Agreement.

    


    8.3.      Notice. In the event
an Indemnified Party seeks indemnification pursuant to this Agreement, the
Indemnified Party shall give prompt written notice to Indemnifying Party of the
applicable Third Party Assertion; provided, however, that failure to give prompt
notice shall not relieve Indemnifying Party of any liability under this
Agreement, except to the extent Indemnifying Party demonstrates that the defense
of such Third Party Assertion is materially prejudiced by such
failure.

    


    8.4.      Cooperation. An
Indemnified Party shall reasonably cooperate with Indemnifying Party in the
defense or prosecution of a Third Party Assertion at Indemnifying Party’s sole
cost and expense.

    


    8.5.      Participation. An
Indemnified Party shall have the right to participate, at its own cost and
expense, in the defense and settlement of any Third Party Assertion and to
employ counsel of its choice for such purpose; provided, however, Indemnifying
Party shall pay the reasonable fees, costs and expenses of such separate counsel
incurred by the Indemnified Party if, following the Indemnified Party providing
prior written notice of such Third Party Assertion to Indemnifying Party: (i)
Indemnifying Party shall have failed or refused to acknowledge that it has an
indemnity obligation for such Third Party Assertion prior to the date of such
notice, or (ii) representation of both Indemnifying Party and the Indemnified
Party by the same counsel would, under applicable code or rules of professional
conduct or responsibility, create a conflict of interest.

    


    9.           Term. The initial
term (“Initial
Term”) of this Agreement shall be three (3) years commencing on the
Effective Date, unless terminated earlier in accordance with Section 10.1;
provided, however that this Agreement will automatically renew for additional
twelve (12)-month periods (each, a “Renewal Term” and,
together with the Initial Term, collectively referred to as the “Term”), unless either
party notifies the other party in writing of its intent not to renew this
Agreement at least ninety (90) days prior to the expiration of the Initial Term
or the then-current Renewal Term.


    
      
         


      

      
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    10.         Termination.

    


    10.1.    Right to
Terminate.  Each party shall have the right to immediately
terminate this Agreement in the event (i) the other party materially breaches
this Agreement and such breach remains uncured thirty (30) days following
written notice describing the breach from the non-breaching party, or (ii) the
other party violates any applicable FTC Rule or and Regulation, the CAN-SPAM
Act, MMA Guidelines, or other applicable state and/or federal law and such party
has not cured the non-compliance within five (5) days of receiving written
notice of such non-compliance, except in the case where the non-compliance
directly results in an adverse determination or judgment by or in favor of a
governmental regulatory agency, in which event such notice and cure period shall
not apply.

    


    10.2.    Effect of
Termination. In the event this Agreement expires or is terminated, then
(i) Atrinsic will cease providing the Marketing Services and its efforts to
generate Subscribers, (ii) all licenses and rights granted herein shall
terminate and revert to the party granting such licenses or rights, (iii) BDE
shall continue to pay Fees incurred prior to termination to Atrinsic in
accordance with Section 3.1, (iv) neither BDE nor Atrinsic shall solicit, or
attempt to solicit, any Subscribers to discontinue their subscription of the
Content Services, and (v) each party shall use its commercially reasonable
efforts to cooperate with the other to effect a smooth and orderly
transition.  From the time that a notice of termination is received by
either party until the effective termination date, each party shall use it
commercially reasonable efforts to cooperate fully with any newly appointed
party performing the duties contemplated hereunder.  Any costs and
expenses incurred in the transition of services contemplated hereunder shall be
borne by BDE.

    


    11.         Confidential
Information.

    


    11.1.    Confidentiality
Obligations.  Each party agrees to regard and preserve as
confidential all information related to the rights and obligations of the other
party under this Agreement and the business and activities of the other party,
their clients, licensors, suppliers and other entities with whom such other
party does business, which may be obtained by such party from any source or may
be developed or disclosed as a result of this Agreement, including the economic
and financial terms and conditions contained in or otherwise referenced by this
Agreement (the “Confidential
Information”).  Each party agrees to use the Confidential
Information of the other party hereto solely to perform its obligations under
this Agreement and not for any other purpose (whether for its own benefit or the
benefit of any other party), agrees to hold the Confidential Information of the
other party hereto in trust and confidence and agrees not disclose Confidential
Information of the other party hereto to any person, firm or
enterprise.  Each party agrees to protect the Confidential Information
of the other party hereto with at least the same security measures (but no less
than commercially reasonable security measures) that such party uses to protect
its own Confidential Information or trade secrets.  Even when
disclosure is permitted, each party agrees to limit access to and disclosure of
each other party’s Confidential Information solely to its employees on a “need
to know” basis for purposes directly related to the performance of the party’s
obligations hereunder. Notwithstanding the foregoing, each party may disclose
the other party’s Confidential Information pursuant to applicable law or
regulation or compulsion of proper judicial or other legal process including, without limitation, to
satisfy a party’s public disclosure requirements under state and federal
securities laws; provided, however, that, if legally permitted to do so,
the disclosing party shall provide prompt notice of the same prior to such
required disclosure such that the other applicable party may seek a protective
order or other appropriate remedy to safeguard, restrict and/or limit the
disclosure of such Confidential Information.


    
      
         


      

      
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    11.2.    Exceptions.  For
purposes of this Agreement, Confidential Information includes, without
limitation, information about each
party’s operations, services, trade secrets, proprietary and competitive
information,
financial information, computer programs, algorithms, application programming
interfaces, design, technology, ideas, know-how, processes, formulas,
compositions, data, techniques, improvements, inventions (whether patentable or
not), works of authorship, business and product development plans, customers and
other information concerning each party’s actual or anticipated business,
research or development, information that is marked “Confidential” or
information which is received in confidence by a party or for a party from any
other person or entity; provided, however, that information shall not be
considered Confidential Information to the extent, but only to the extent that
such information (a) is or becomes publicly available through no fault, default
or breach of or by the receiving party, (b) is or was rightfully acquired by the
receiving party from another without restriction or obligation of
confidentiality or (c) if such information is or was independently developed by
the receiving party without use of or reference to Confidential Information of
the other party.  Notwithstanding the foregoing, each party may
disclose the other party’s Confidential Information pursuant to applicable law
or regulation or compulsion of proper judicial or other legal process including,
without limitation, to satisfy a party’s public disclosure requirements under
state and federal securities laws; provided, however, that, if legally permitted
to do so, the disclosing party shall provide prompt notice of the same prior to
such required disclosure such that the other applicable party may seek a
protective order or other appropriate remedy to safeguard, restrict and/or limit
the disclosure of such Confidential Information.

    


    11.3.    Non
Solicitation.  Each party agrees that during the Term of this
Agreement and for a one (1) year period after termination of this Agreement,
such party will not (1) directly or indirectly solicit, induce, encourage or
attempt to solicit or induce any employee of the other party to discontinue his
or her employment with such party; (2) usurp any opportunity of the other party
that such party becomes aware of from any other party during the term of this
Agreement; or (3) directly or indirectly interfere with, solicit, induce or
attempt to influence any person or business that is an account, customer or
client of the other party that such party becomes aware of from the other party
except for the benefit of such other party.

    


    12.         Press Releases. All
press releases and other public disclosures with respect to the Website, Brand
or Content Services or the relationship contemplated in the Agreement shall
require the prior written approval of both parties.

    


    13.         Force Majeure. Either
party’s performance of any part of this Agreement, other than payment
obligations, shall be excused to the extent that it is hindered, delayed or
otherwise made impractical by the acts or omissions of the other party or any
network operator, flood, fire, earthquake, strike, stoppage of work, or riot,
failure or diminishment of power or of telecommunications or data networks or
services not under the control of a party, governmental or military acts or
orders or restrictions, terrorist attack; or any other cause (whether similar or
dissimilar to those listed) beyond the reasonable control of that party and not
caused by the negligence of the non-performing party (collectively referred to
as “Force
Majeure” below.  If any Force Majeure condition(s) occur(s),
the non-performing party shall make reasonable efforts to notify the other party
of the nature of any such condition and the extent of the delay, and shall make
reasonable, good faith efforts to resume performance as soon as
practicable.


    
      
         


      

      
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    14.     
    Miscellaneous.

    


    14.1.    Notices.  All
notices, requests, demands or other communications that are required or may be
given pursuant to the terms of this Agreement shall be in writing and shall be
deemed to have been duly given (i) on the date of delivery, if personally
delivered by hand, (ii) upon the third day after such notice is deposited in the
United States mail, if mailed by registered or certified mail, postage prepaid,
return receipt requested, (iii) upon the date of delivery, if notice is sent by
a nationally recognized overnight express courier with tracking capabilities,
(iv) by fax upon written confirmation with a confirmation copy sent by mail, or
(v) on the day of transmission if by email delivery.  Such notices
shall be given to the parties at the address set forth above.  Any
party may, at any time by giving five (5) days’ prior written notice to the
other parties, designate any other address in substitution of the foregoing
address to which such notice will be given.

    


    14.2.    Amendments. No
amendment, modification or change to this Agreement shall be effective unless it
is in writing and signed by both parties.

    


    14.3.    Further Assurances.
The parties hereby agree to execute and deliver such additional documents and
instruments and to perform such additional acts as may be necessary or
appropriate to effectuate, carry out and perform all of the terms, provisions
and conditions of this Agreement.

    


    14.4.    Incorporation. The
Recitals and all schedules and exhibits referenced in and attached to this
Agreement are true and correct and are hereby incorporated into this
Agreement.

    


    14.5.    Severability. If any
provision of this Agreement is held to be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of this
Agreement.

    


    14.6.    Parties in Interest.
Nothing in this Agreement shall confer any rights or remedies under or by reason
of this Agreement on any person or entity other than the BDE, Atrinsic and their
respective successors and permitted assigns.  Notwithstanding the
foregoing, BDE agrees that any and all BDE obligations under this Agreement
shall be guaranteed by any entity controlling, controlled by or under common
control with BDE (each a “BDE Affiliate”) and this Agreement shall be legally
enforceable against any BDE Affiliate.

    


    14.7.    Headings. All
headings in this agreement are inserted only for convenience and ease of
reference and are not to be considered in the construction or interpretation of
any provision of this Agreement.

    


    14.8.    Dispute Resolution.
The parties agree to attempt to resolve any disputes arising out of this
Agreement pursuant to the terms of this Section.


    
      
         


      

      
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    14.8.1.     Management
Resolution. Any dispute arising under this Agreement shall first be
referred to BDE’s President and Atrinsic’s CEO (“Management
Resolution”) for resolution.

    


    14.8.2.     Mediation. In the
event the attempt at Management Resolution fails to resolve the dispute within
thirty (30) days of either party providing written notice to the other party of
the commencement of the Management Resolution process, either party may refer
the dispute to non-binding mediation (“Mediation”) for
resolution. The Mediation shall be held at a mutually agreed to location and at
a mutually agreed to time before a mutually agreed to certified
mediator.

    


    14.8.3.     Arbitration.  In
the event the attempt at Mediation fails to resolve the dispute within thirty
(30) days of either party providing written notice to the other party requesting
Mediation to resolve the applicable dispute, either party may refer the dispute
to binding arbitration in Los Angeles, California (“Arbitration”) for
final resolution administered by the American Arbitration Association under its
Commercial Arbitration Rules.

    


    14.9.    Governing Law; Venue;
Jurisdiction. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California without giving effect to
the conflicts of law provisions thereof.  For any action to compel
arbitration or enforce an arbitration award or seek injunctive relief pursuant
to this Agreement, the parties hereby expressly consent to the jurisdiction and
venue of the state and/or federal courts located in Los Angeles County,
California and BDE hereby expressly waives any objection to such venue based
upon forum
non-conveniens or otherwise.

    


    14.10.  Attorneys’ Fees and
Costs. In the event of any arbitration, action to compel arbitration or
enforce an arbitration award or seek injunctive relief pursuant to this
Agreement, the prevailing party in such action shall be entitled to an award of
their reasonable attorneys’ fees and costs through arbitration, trial and all
levels of appeal.

    


    14.11.  Survival. The
provisions set forth in Sections 1, 4, 5, 6, 7, 8, 9, 11.2, 12 and 15 will
survive the expiration and termination of this Agreement. In addition, any
obligation to collect and distribute accrued revenue shall survive the
expiration and termination of this Agreement.

    


    14.12.  Assignment. Neither
party may assign this Agreement or delegate any portion or obligation set forth
in this Agreement without the other party’s prior written approval, which shall
not be unreasonably withheld, and any purported assignment or delegation without
such consent shall be null and void; provided, however, that either party may
assign, transfer, delegate or perform any rights or obligations under this
Agreement through a wholly-owned subsidiary of such party, without the approval
of the other party, so long as such party remains liable for all obligations of
such party and the permitted assignee under this Agreement.


    
      
         


      

      
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    14.13.  Entire Agreement.
This Agreement constitutes the complete and exclusive statement of agreement
among the parties with respect to the subject matter in this Agreement and
replaces and supersedes all prior and contemporaneous agreements, understandings
and statements by and between the parties. No representation, statement,
condition or warranty not contained in this Agreement will be binding on the
parties or have any force or effect whatsoever.

    


    14.14.  Counterparts. This
Agreement may be signed and executed in one (1) or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one
Agreement.  A facsimile signature shall be deemed an original for
purposes of evidencing execution of this Agreement.


    
      
         


      

      
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    IN WITNESS WHEREOF, each of
the undersigned parties has consented its duly authorized representative to
execute this Agreement as of the Effective Date.

    


    
      	 
      	
              BDE:

            
	 
      	 
      
	 
      	
              Brilliant
      Digital Entertainment, Inc.

            
	 
      	 
      	 
      
	 
      	
              By:

            	 
      
	 
      	
              Name: 

            	 
      
	 
      	
              Title:

            	 
      
	 
      	 
      	 
      
	 
      	
              ATRINSIC

            
	 
      	 
      
	 
      	
              Atrinsic,
      Inc., a Delaware corporation

            
	 
      	 
      	 
      
	 
      	
              By:

            	 
      
	 
      	
              Name:

            	 
      
	 
      	
              Title: