EXHIBIT 10.9
LICENSING AGREEMENT
This Licensing Agreement (this "AGREEMENT") is entered into
as of April 18, 2000 (the "EFFECTIVE DATE") by and between
DigitalConvergence.:com Inc., a Delaware corporation with offices at 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("DCCI"), and National Broadcasting
Company, Inc., a Delaware corporation having its principal place of business
at 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, XX 00000 ("NBC") (collectively, the
"PARTIES").
WHEREAS, DCCI has created technology to allow personal
computers of television viewers to be directed to specific websites as
effected by an encoded cue embedded in a television audio signal;
WHEREAS, NBC creates, broadcasts and transmits television
programs;
WHEREAS, NBC wishes to use DCCI's television/website
technology and DCCI desires NBC to use such technology;
NOW, THEREFORE, in consideration of the above premises and
other good and valuable consideration received and to be received under this
Agreement, the sufficiency of which is acknowledged by the parties, the
parties agree to the following:
1. DEFINITIONS.
1.1 "AFFILIATE" means any Person that is directly or
indirectly, through one or more intermediaries, Controlled by or under common
Control with a Party. For purposes of this definition, "CONTROL" shall mean
possessing, directly or indirectly, the power to direct or cause the direction
of the management, policies and operations of a Person, whether through
ownership of voting securities, by contract or otherwise.
1.2 "CABLE PRIME TIME" means 9:00 a.m. through 4:00
p.m., local time, or some other range of hours mutually agreed upon between
the parties.
1.3 ":CAT SCANNER" means a DCCI proprietary bar code
scanning pen for use with the :CRQ Software.
1.4 "COMMERCIAL :CUE" means a :Cue created by DCCI at
the request of NBC and run in a commercial spot, sponsored announcement or
otherwise where the Linked Website of the :Cue relates primarily to any
commercial service or product (i.e., as opposed to relating to informational
content or specific promotions of NBC programs).
1.5 "CONTENT :CUE" means a :Cue created by DCCI at the
request of NBC and run in a television program where the Linked Website of the
:Cue relates primarily to the creative or editorial content of the program and
(except as provided in Section 6.1(a)) where no payment or other consideration
is received. All Content :Cues must link to non-commercial, content-oriented
Linked Websites in order to be deemed Content :Cues, and such content-oriented
Linked Websites may not automatically redirect viewers to commercial-oriented
websites.
1.6 ":CRQ :CUE TECHNOLOGY" means DCCI's proprietary
software, hardware or other technology, and any Intellectual Property related
thereto, used to transmit :Cues in a television signal and to allow personal
computers programmed with the :CRQ Software to automatically access or be
directed to Linked Websites (including, without limitation, the :CRQ Software,
the Encoding Hardware, the :Cue Audio Component and the :Cue Visual Service
Xxxx).
1.7 ":CRQ SOFTWARE" means DCCI's proprietary software,
available to consumers via disk, CD-ROM, download over the Internet or via
such other means as DCCI shall determine, and that, when installed on a
personal computer, will allow a television viewer or a user of a :Cat Scanner
user to automatically access or be directed to a Linked Website or data file
in response to receipt of a :Cue or data from a :Cat Scanner.
1.8 ":CRQ SOFTWARE/NBC USER DATA" means (i) any and all
data and information collected during the process through which viewers
register to use the :CRQ Software (e.g., name, e-mail address, address, sex,
age, etc.), as well as (ii) any and all data, information and content relating
to NBC :Cues (but not the look, feel or presentation of such content)
concerning :CRQ Software users collected by or on behalf of DCCI during the
Term; provided in the case of all of the foregoing: (A) such users have
downloaded the :CRQ Software directly from NBC-Related Websites and registered
through use thereof, and (B) such users have not opted out of sharing such
data with NBC (e.g., by affirmatively "un-checking" a pre-checked opt-out box
stating that the user agrees to permit such sharing of data).
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1.9 ":CUE/NBC USER DATA" means any and all data and
information collected during the registration process (e.g., name, e-mail
address, address, sex, etc.), as well as any and all data, information and
content related to NBC :Cues (but not the look, feel or presentation of such
content) collected by or on behalf o f DCCI during the Term concerning :CRQ
Software users who have received a :Cue broadcast or transmitted by an NBC
:Cue User and accessed a Linked Website via such :Cue.
1.10 ":CUE" means the simultaneous broadcast or
transmission to the public of the :Cue Visual Service Xxxx and the :Cue Audio
Component, which broadcast or transmission can remotely enable a television
viewer's personal computer programmed with the :CRQ Software and access the
World Wide Web to link automatically with a designated Linked Website.
1.11 ":CUE AUDIO COMPONENT" means a brief audio tone
(the "SCREECH") in which encoded information is embedded to direct the :CRQ
Software to a designated Linked Website which is played by a television
speaker. The Screech shall be accompanied by a sound(s) or musical phrase that
is mutually chosen by DCCI and NBC (the "AUDIO SERVICE XXXX") that is played
by a television speaker at the minimum volume required to guarantee the
operation of the :CRQ :Cue Technology; provided, that the volume of the
Screech and the Audio Service Xxxx shall always be identical and shall never
exceed fifty-two (52) decibels; provided, further, that if NBC and DCCI are
unable to agree upon the specific sound(s) or musical phrase to be used, then
a single musical note selected by DCCI shall be used. The :Cue Audio Component
will always be broadcast or transmitted simultaneously with the :Cue Visual
Service Xxxx. The :Cue Audio Component will be furnished by DCCI at the
request of NBC from DCCI's server in accordance with the terms of this
Agreement.
1.12 ":CUE REPORT" means a list of all NBC :Cues run
during each calendar month during the Term period, including at least an
identification of the type of :Cue run, the originating broadcast Network,
Cable Network or Station, and the date and time when the applicable :Cue ran.
1.13 ":CUE VISUAL SERVICE XXXX" means the animated
version of DCCI's service xxxx (i.e., an inverse bass-clef or such other
service xxxx as DCCI shall determine) as furnished by DCCI to NBC that will
give television viewers a visual cue that the :Cue is being transmitted;
provided, that the animation of the :Cue shall be substantially similar to
that demonstrated to NBC's technical staff on or before the Effective Date.
The :Cue Visual Service Xxxx shall appear (underscan and small screen title
safe) in the lower right quadrant of the television or monitor viewing area,
shall appear in a size that is (a) 40 pixels from left to right and (b) 32
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lines from top to bottom on a conventional television set, and which :Cue
Visual Service Xxxx shall always appear in its entirety. The :Cue Visual
Service Xxxx shall always be broadcast or transmitted simultaneously with the
:Cue Audio Component. The Visual Service Xxxx will be furnished to NBC by DCCI
in the form of a graphics element prior to the commencement of the Term.
1.14 "DCCI ICON" means the DCCI icon or button or other
graphic element in the form of the :Cue Visual Service Xxxx, and accompanying
explanatory text to be mutually agreed by the Parties (with NBC not to
unreasonably withhold or delay its agreement thereto), appearing on
NBC-Related Sites which, when activated by a computer user, will allow the
user to download the :CRQ Software and which DCCI Icon will be readily legible
to the average user.
1.15 "DCCI MARKS" means the trademarks, trade names,
service marks, logos, domain names and other indicia owned or controlled by or
licensed by DCCI or any Affiliate relating to DCCI or any Affiliate which are
specified on Exhibit 1.15 attached hereto.
1.16 "DCCI'S VIRTUAL NETWORK" means the border
controlled by DCCI surrounding Linked Websites accessed via the :CRQ Software
and consisting of (i) a vertical bar on the side of the computer screen or
monitor ("Third Party Banner Bar"), and (ii) a horizontal bar on the bottom
side of the computer screen or monitor ("Category Tab Bar"). Unless modified
by the viewer, the maximum width of the Third Party Banner Bar will be 100
pixels and the maximum height of the Category Tab Bar will be 60 pixels. The
Third Party Banner Bar and Category Tab Bar will be dynamic (i.e., their size,
color and other characteristics will be adjusted depending on the Linked
Site), but the icons and text contained on each bar will be readily legible to
the average user and the DCCI Virtual Network will be designed and delivered
to the user containing HTML Size 1 links.
1.17 "ENCODING HARDWARE" means DCCI's proprietary
hardware that DCCI will furnish NBC prior to commencement of the Term for
NBC's use during the Term, subject to the terms and conditions of this
Agreement, which Encoding Hardware will allow NBC to insert :Cues into live
programming.
1.18 "INTELLECTUAL PROPERTY" means all patents and
patent applications, trademarks, service marks, and trademark or service xxxx
registrations and applications, trade names, Internet domain names, logos,
designs, interfaces, look-and-feels, slogans, and general intangibles of like
nature, together with all goodwill related to the foregoing; copyrights,
copyright registrations, renewals and applications for copyrights; software
and technology.
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1.19 "LAUNCH DATE" means the later of (i) September 1,
2000, or (ii) the date on which a package of the :CRQ Software and :Cat
Scanner is distributed to at least five (5) million persons and at least five
(5) million persons have loaded or downloaded the :CRQ Software and registered
through the use thereof.
1.20 "LINKED WEBSITE" means the web site address (or
other address acceptable to DCCI) furnished by NBC to DCCI in connection with
each :Cue requested by NBC. DCCI shall enable, and NBC shall maintain, links
from :Cues transmitted by NBC during the Term to associated Linked Websites
for one hundred eighty (180) days from the first telecast of the :Cue (and NBC
shall notify DCCI of such dates within thirty (30) days of the telecast),
subject to the terms and conditions set forth in this Agreement; provided,
that this 180 day period shall not be abridged with respect to any particular
:Cue by any expiration of this Agreement or termination by NBC of this
Agreement. During the Term, after the aforementioned 180-day period when an
NBC :Cue is no longer in use, DCCI shall try to recycle such :Cues back to NBC
when NBC requests a :Cue from DCCI; and during the Term (and for particular
:Cues during the aforementioned 180-day period to the extent they may extend
beyond the Term) shall try not to assign such :Cues to third parties. After
the 180-day period, DCCI may terminate links to NBC-Related Websites and/or
other Linked Websites, and/or insert a message to be displayed to viewers
activating a :Cue created during the Term notifying them that the :Cue is no
longer available.
1.21 "MARKET" means the Designated Market Area ("DMA")
for an NBC Station as defined by Xxxxxxx Media Research, Inc.
1.22 "NBC :CUE USER" means each of the NBC Network, NBC
Stations and NBC Cable Networks, and other entities which DCCI may approve in
writing.
1.23 "NBC CABLE NETWORKS" means the NBC
owned-and-operated cable services or channels set forth in Exhibit 1.23 hereto
that transmit television programs over cable or via satellite, and the Xxxxxx
network; provided that any such service or channel not listed on Exhibit 1.23
may be added to this Agreement only if it does not put DCCI in default of a
third party agreement or otherwise expose DCCI to any third party liability.
1.24 "NBC CONTROLLED LINKED WEBSITES" mean the Linked
Websites owned and operated by Persons that are Controlled by NBC, including
without limitation, the websites of XXXX.Xxx and all NBC Station Websites.
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1.25 "NBC LINKS" means any NBC Marks, icons, buttons or
other graphic elements that, when activated by a computer user, link such user
to specific pages on NBC-Related Websites.
1.26 "NBC MARKS" means the trademarks, trade names,
service marks, logos, domain names and other indicia owned, controlled by or
licensed by NBC or any Affiliate relating to NBC or any Affiliate which are
specified on Exhibit 1.26 hereto.
1.27 "NBC NETWORK" means the NBC television network.
1.28 "NBC STATIONS" means the NBC owned-and-operated
local over-the-air broadcast television stations set forth in Exhibit 1.28
hereto that broadcast television programs available to the public over-the-air
and specifically excluding the NBC Station in the Dallas, Texas Market,
provided that owned and operated local over-the-air television stations not
listed on Exhibit 1.28 may be added to this Agreement only if such stations do
not put DCCI in default of a third party agreement or otherwise expose DCCI to
any third party liability.
1.29 "NBC-RELATED WEBSITE" means each website owned
and/or operated by an NBC :Cue User, including without limitation, XXX.xxx,
XXXX.xxx, XXXX.xxx, XXXXX.xxx and xxxxxxxxxxx0.xxx, and all other NBC
Controlled Linked Websites.
1.30 "NETWORK PRIME TIME" means 8:00 p.m. through 11:00
p.m. in the Eastern Time Zone, 7:00 p.m. through 10:00 p.m. in the Central and
Mountain Time Zones, and 8:00 p.m. through 11:00 p.m. in the Pacific Time Zone.
1.31 "NON-NBC CONTROLLED LINKED WEBSITES" means Linked
Websites that are owned and operated by Persons that are not Controlled by NBC.
1.32 "PERMITTED :CUES" means Content, Promotional and
Commercial :Cues, in the quantities per time period specified in this
Agreement.
1.33 "PERSON" means an individual or a corporation,
partnership, limited liability company, joint venture, trust or any other
entity or organization.
1.34 "PERSONAL DATA" means data relating to the personal
identity of the party to whom the data relates, such as name, phone number,
address or any similar information that could identify a party as a particular
individual.
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1.35 "PROMOTIONAL :CUE" means a :Cue created by DCCI at
the request of NBC and run in (i) a spot promoting programming of an NBC :Cue
User, (ii) in a corporate promotional spot for the NBC :Cue User itself or
NBC-Related Website, or (iii) public service announcements and (iv) other
promotional spots; and in all of the foregoing cases, where the Linked Website
relates primarily to the subject matter of the promotion and (except as
provided in Section 6.1(a)), where no payment or other consideration is
received.
1.36 "QUARTER" means each three (3) month period during
the Term that follows the 90th day of the commencement of the Term.
1.37 "STATION PRIME TIME" means 8:00 p.m. through 11:30
p.m. in the Eastern Time Zone, 7:00 p.m. through 10:30 p.m. in the Central and
Mountain Time Zones, and 8:00 p.m. through 11:30 p.m. in the Pacific Time Zone.
1.39 "TERM" means the term of this Agreement which shall
commence on the Launch Date and expire eighteen (18) months thereafter, unless
otherwise terminated at an earlier date in accordance with this Agreement.
1.40 "TERRITORY" means the United States of America,
provided that those areas of Canada and Mexico covered by any over-the-air
broadcast signal transmitted from within the Territory via spillover from an
NBC Station over-the-air broadcast will not be a violation of this Agreement;
and Puerto Rico or any other area in the Caribbean where NBC has an owned and
operated station or network affiliate.
2. LICENSE GRANT.
2.1 CONDITION PRECEDENT. The validity of this
Agreement, and the rights and obligations of the Parties, are conditioned upon
NBC entering into an agreement with DCCI regarding warrants and registration
rights (the "Registration Agreements"). If the Registration Agreement is not
executed contemporaneously with this Agreement, both the Registration
Agreements and this Agreement shall be deemed null and void AB INITIO and of
no force or effect.
2.2 DCCI LICENSE TO NBC. Subject to the terms and
conditions of this Agreement, DCCI hereby grants to NBC :Cue Users: (i) a
non-transferable, non-exclusive limited license and right during the Term and
in the Territory to use the :CRQ :Cue Technology, including the Encoding
Hardware, :Cue Audio Component and :Cue Visual Service Xxxx, in order to
effectuate the transmission of :Cues as contemplated herein, (ii) a
non-transferable, non-exclusive limited license and right during the Term
throughout the world to use the DCCI Icon on NBC-
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Related Websites and the DCCI Marks to advertise and promote the :CRQ :Cue
Technology.
2.3 NBC LICENSE TO DCCI. Subject to the terms and
conditions of this Agreement, NBC hereby grants to DCCI a worldwide, royalty
free, fully paid-up, non-exclusive, non-transferable license to use, reproduce
and display the NBC Marks and NBC Links solely in connection with (i) DCCI's
Virtual Network and the advertising and promotion thereof, (ii) the
advertising and promotion of the :CRQ :Cue Technology, and (iii) other uses
set forth in this Agreement, provided, that NBC shall have final right of
approval over the use of the NBC Marks and NBC Links in connection with such
use and such approval shall not be unreasonably withheld, delayed or
conditioned it being understood that such approval shall be applied to DCCI no
less favorably than to any other third party. NBC shall use commercially
reasonable efforts to furnish DCCI with pre-approvals in connection with
DCCI's use of the NBC Marks and NBC Links as soon as possible but in no event
later than sixty (60) days before July 1, 2000. Without limitation of the
foregoing, (a) NBC further authorizes DCCI to cause the DCCI Virtual Network
to appear on and in connection with NBC Controlled Linked Websites, and
warrants and represents that it has the right to do so; (b) NBC agrees that
the NBC:Cue Users shall not direct :Cues to any Non-NBC Controlled Linked
Websites unless (i) NBC first has delivered to the party or parties that own
and control such Non-NBC Controlled Linked Website a standards and practices
fact sheet, prepared by DCCI, describing such :Cues, that shall include the
appearance of the DCCI Virtual Network on and in connection therewith, and
given such party a reasonable opportunity to object; (ii) NBC has used
reasonable commercial efforts to obtain an written explicit authorization from
such party, for DCCI to cause the DCCI Virtual Network to appear on and in
connection with such Non-NBC Controlled Linked Website; (c) both parties agree
that to the extent that either party incurs any liability, cost or expense in
connection with the appearance of the DCCI Virtual Network on and in
connection with any Non-NBC Controlled Linked Website, both parties shall
contribute to each other such that such liability, cost and expense is shared
equally.
2.4 OWNERSHIP OF TRADEMARKS. Each Party agrees that the
Marks of the other Party are and will remain the sole property of such other
Party. Neither DCCI nor NBC shall do anything inconsistent with such
ownership. All uses by one Party of the other Party's Marks, including all
goodwill generated by the party using such Marks, shall accrue and inure to
the benefit of and be on behalf of the owner of such Marks. DCCI and NBC each
agree that it shall not (i) register or apply for registration of any element
of the other Party's Marks, (ii) assert any adverse claim against the other
Party based upon its use of the other Party's Marks and/or (iii) challenge or
contest the validity or ownership by the other Party of its Marks. DCCI and
NBC each reserve all rights to control the use of its respective Marks, and
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neither Party shall use, change, or modify the other Party's Marks in any
manner without prior written authorization from the owner of such Marks. DCCI
and NBC each shall (i) cause the appropriate designation-TM- or the
registration symbol-Registered Trademark- to be placed adjacent to the other
Party's Marks in connection with each use or display thereof and to indicate
such additional information as the owner of the Marks shall reasonably
specify from time to time concerning the use of its Marks, and (ii) comply
with all applicable laws pertaining to trademarks in force. In the event that
either DCCI or NBC reasonably determines that its Marks are being used by the
other Party in a manner that is inconsistent with the owner's quality
standards and reasonably demonstrates such inconsistency to the other Party,
the other Party will within thirty (30) days thereafter cure such
inconsistency or cease such use. Except as expressly granted in this
Agreement, each Party shall have no other rights of any kind in the Marks of
the other Party. Under no circumstances will anything in this Agreement be
construed as granting, by implication, estoppel or otherwise, a license to
any of DCCI's or NBC's Intellectual Property other than the use of each
Party's respective Marks in accordance with the terms of this Agreement. DCCI
and NBC each acknowledge that the other's Marks are the sole property of such
Party, and this Agreement only grants DCCI and NBC a limited right to use the
Marks of the other Party under the terms and conditions of this Agreement.
2.5 OWNERSHIP OF :CUE TECHNOLOGY. The :CRQ :Cue
Technology, Encoding Hardware, :Cue Visual Service Xxxx, :Cue Audio Component;
:CRQ Software and all related Intellectual Property are the sole property of
DCCI. NBC shall not make any other use whatsoever of DCCI's technology,
Intellectual Property or other proprietary information or materials. Without
limiting the foregoing, NBC shall not (i) reverse assemble, reverse compile,
reverse engineer, or disassemble DCCI's hardware, software or other
Intellectual Property; (ii) rent, lease, modify, merge, create derivative
works from, incorporate within any other software, copy or transfer copies of
the DCCI's hardware, software or other Intellectual Property; or (iii) license
or sublicense DCCI's hardware, software or other Intellectual Property, in
whole or in part, to any third party unless specifically authorized in this
Agreement. The foregoing notwithstanding, DCCI shall have no right, title or
interest in the NBC Marks, NBC Links, content owned by NBC or content
contained on the NBC-Related Websites or other Linked Websites.
2.6 LIMITATIONS ON NBC LICENSE. For Commercial :Cues,
each NBC Network and NBC Cable Network is permitted to run two (2) Commercial
:Cues per half-hour of each of their respective of programming, and each NBC
Station is permitted to run ten (10) Commercial :Cues per day. There is no
limitation on the number of Promotional :Cues and Content :Cues that NBC :Cue
Users can run during the Term in their programs, provided that NBC shall
generally choose its
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level of promotion and content usage such that on-line consumer response does
not exceed the on-line infrastructure capacities of the respective NBC
division or NBC-Related Website. There shall be no cross-collateralization
(i.e., deferring, crediting, etc.) between or among NBC :Cue Users and/or
between or among kinds and number of :Cues, programming half-hours or days, as
applicable. Subject to the foregoing limitations, (i) the NBC :Cue Users owned
or controlled by NBC shall use reasonable efforts to promote the :CRQ :Cue
Technology and use Content :Cues and Promotional :Cues, and (ii) NBC shall use
commercially reasonable efforts to encourage the other NBC :Cue Users to
promote the :CRQ :Cue Technology and use Content :Cues and Promotional :Cues.
2.7 RESERVATION OF RIGHTS; NO OTHER LICENSES. All
rights not expressly granted herein are reserved to the owner, and except for
the licenses expressly provided herein, no licenses are granted by any party,
either expressly, by implication or estoppel, to any Intellectual Property,
technology, or proprietary information or materials. Except as provided for
herein, each Party shall make no other use whatsoever of the other Party's
Intellectual Property, technology, or proprietary information or materials.
3. EXCLUSIVITY.
3.1 DCCI'S EXCLUSIVITY.
(a) For twenty four (24) months from the
Effective Date of this Agreement, NBC, NBC :Cue Users and their Affiliates
shall not use any technology that is similar to any patented (or patent
pending) technology of DCCI (including, without limitation, any technology
that uses a sound file to launch websites, web-based information or data files
or that could confuse the public that the technologies are related, similar or
from the same source) ("SIMILAR TECHNOLOGY"). The foregoing exclusivity
provision shall cover only technologies for which DCCI has obtained United
States patent protection (or for which a patent is pending) and which is not
subsequently found invalid or unenforceable by a court or administrative
agency. Notwithstanding the foregoing, NBC shall not be precluded from
engaging in business relationships with other interactive television platform
providers, as long as such activity does not involve using Similar Technology.
Further, the foregoing exclusivity provision shall not be construed to prevent
NBC from broadcasting or otherwise exhibiting advertisements into which an
advertiser may have incorporated technology, whether produced or developed by
the advertiser or a third party, which DCCI may deem to be similar to the :CRQ
:Cue Technology.
(b) To promote its exclusive (as provided in this
Agreement) use of the :CRQ :Cue Technology, NBC shall place the DCCI Icon and
mutually
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approved explanatory text on the NBC Controlled Linked Websites , and shall
use commercially reasonable efforts to have such DCCI Icon and mutually
approved explanatory text placed on the Non-NBC Controlled Linked Websites.
The DCCI Icon, when activated, will allow a user to download the :CRQ Software
to such user's personal computer. NBC shall place the DCCI Icon on pages not
more than one click away from the home pages of XXXX.xxx and all websites for
NBC Stations. NBC shall use commercially reasonable efforts to arrange for the
DCCI Icon to be placed on pages not more than one click away from the home
pages of all other NBC-Related Websites; provided, that if any such other
NBC-Related Websites declines to place the DCCI Icon not more than one click
away from its home page, then such other NBC-Related Website shall not be
entitled to place the DCCI Icon on its site, unless DCCI authorizes placement
of the DCCI Icon thereon.
3.2 NBC'S EXCLUSIVITY.
(a) EXCLUSIVITY WITH RESPECT TO USE OF :CUES.
During the Term of this Agreement, NBC Stations shall have the exclusive right
to use of the :CRQ :Cue Technology in local programs in the respective NBC
Stations' Markets as against (i) the CBS and ABC television networks solely
with respect to advertisements and promotional spots (including corporate
promotional spots for such networks and public service announcements, but
explicitly excluding any content-related material) inserted by such networks
into local programming, and (ii) the owned and operated stations and network
affiliated stations of CBS Corp. ("CBS"), or ABC, Inc. ("ABC") in the United
States of America, except for the Dallas, Texas Market where DCCI has
previously granted Belo Enterprises, Inc. ("BELO") the exclusive right to run
:Cues in television programming in the Dallas, Texas Market and in which
Dallas Market NBC Stations may not exploit the rights granted to other NBC
Stations hereunder. If, by June 1, 2000, NBC commits in a written notice
received by DCCI to running at least two (2) Content :Cues on the NBC Network
during Network Prime Time hours per day during NBC's television coverage of
the 2000 Olympics ("OLYMPICS COMMITMENT"), NBC will receive additional
exclusivity rights against CBS, ABC, Fox Broadcasting Network ("FOX") in the
United States of America through December 31, 2000, and DCCI shall not license
or allow CBS, ABC, Fox Networks to telecast: Cues through December 31, 2000.
NBC shall have the non-exclusive right to use of the :CRQ :Cue Technology in
local programs in the Caribbean area and in Puerto Rico on its owned and
operated stations. At such time as DCCI desires to make available a
Pan-European or Pan-Asian license to a third party during the Term, DCCI shall
grant NBC a thirty (30) day right of first negotiation for such licenses.
(b) EXCLUSIVITY ON DCCI'S VIRTUAL NETWORK.
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(i) During the Term and subject to the
terms of this Agreement, NBC shall have the exclusive right to occupy three
(3) sections of the Category Tab Bar (as defined in Section 1.16 above)
entitled "Search," "Business" and "News". For the avoidance of doubt, NBC
shall have exclusivity during the Term with respect to the categories of
Search, Business and News on the Category Tab Bar. By way of example only,
DCCI could not during the Term include on the Category Tab Bar another tab
entitled "CNN" or "Yahoo" without NBC's approval. In connection NBC's presence
on the Category Tab Bar, DCCI shall place NBC Marks in sections of the
Category Tab Bar consistent with other tabs on Category Tab Bar). If DCCI
needs to alter the NBC Marks to place them in the Category Tab Bar, DCCI shall
obtain pre-approval from NBC. DCCI shall not discriminate against NBC in terms
of the size and placement of any section of the Category Tab Bar that NBC is
entitled to occupy.
(ii) If NBC makes the Olympics Commitment
or if General Electric Corp. or an Affiliate enters into a meaningful written
agreement with DCCI for a commercial application of the :CRQ :Cue Technology,
NBC shall have the right to have an NBC Link and/or NBC Xxxx as specified by
NBC and reasonably approved by DCCI continuously reside, on a non-exclusive
basis, during the Term on the Virtual Network on the Third Party Banner Bar
(as defined in Section 1.16 above). DCCI shall place the NBC Link on the
Virtual Network in the format provided by NBC as approved by DCCI (such
approval not to be unreasonably withheld or delayed). If DCCI needs to alter
the NBC Link to place it on the Virtual Network, DCCI shall obtain
pre-approval from NBC. NBC shall have the option of being adjacent to, and to
the right of, Radio Shack/Tandy on the Virtual Network and shall be accorded a
link no less favorable with respect to size and prominence as those accorded
to third parties with permanent "Bugs" (i.e. permanent hyper-linked icons) on
the Virtual Network.
(iii) Other than as set forth in this
Agreement, DCCI shall have exclusive control of the look-and-feel and content
of the Virtual Network.
(c) EXCLUSIVITY WITH RESPECT TO NEWSPAPER
PUBLISHERS. During the Term and subject to the terms of this Agreement, DCCI
shall consult with NBC before DCCI enters into any exclusive agreement with
any newspaper in any of the Market areas of NBC Stations for such newspaper's
exclusive use of any DCCI technology related to the :Cat Scanner.
4. DATA RIGHTS.
12
4.1 DATA OWNERSHIP. All :CRQ Software/NBC User Data,
including personal, demographic data and aggregated data, will be jointly
owned by DCCI and NBC. To the extent any right, title or interest in or to any
such user data vests, by operation of law or otherwise, in either Party, such
Party shall, and hereby does, irrevocably assign to the other Party a
one-half, undivided interest in and to any and all such right, title and
interest therein. NBC shall comply with DCCI's privacy policies; provided,
that DCCI shall not make any changes to such privacy policies in bad faith in
order to defeat NBC's rights to data under this Agreement. All other data,
including without limitation :Cue/NBC User Data, shall be owned exclusively by
DCCI.
4.2 ACCESS TO :CRQ SOFTWARE/NBC USER DATA. During the
Term, DCCI shall provide NBC with copies of all of the :CRQ Software/NBC User
Data on a monthly basis via the delivery method and in the format generally
used by DCCI to provide data and information to its other partners. The
Parties shall work together to ensure that NBC is able to access and interpret
such data in a cost effective manner.
4.3 ACCESS TO :CUE/NBC USER DATA. If at any time during
the Term DCCI sells, barters or otherwise shares Personal Data regarding any
registered users of the :CRQ Software with any third party (other than (a)
with a third party acting on DCCI's behalf that does not sell, barter or
otherwise share such Personal Data with third parties, (b) de minimis
non-commercial disclosures on isolated occasions, and (c) confidentially as
required by any court or other governmental authority or as otherwise required
by law), then DCCI shall immediately take all steps reasonably necessary (i)
to provide NBC with copies of all of the :Cue/NBC User Data previously
collected by DCCI during the Term, and (ii) provide NBC with copies of all of
the :Cue/NBC User Data collected thereafter during the Term, with such data to
be provided to NBC via the delivery method and in the format generally used by
DCCI to provide data and information to its other partners. The Parties shall
work together to ensure that NBC is able to access and interpret such data in
a cost effective manner.
4.4 ACCESS TO AGGREGATED DATA. Without limiting the
foregoing, DCCI shall provide NBC with copies of all aggregated data (but not
any Personal Data associated therewith) collected by DCCI during the Term with
respect to all registered users of the :CRQ Software who have received a :Cue
from NBC :Cue Users during the Term, including without limitation the number
of registered users, demographic data with respect to such users, source of
the :CRQ Software, and breakdown of the number of Content :Cues, Promotional
:Cues and Commercial :Cues delivered, with such data to be provided to NBC via
the delivery method and in the format generally used by DCCI to provide data
and information to its other partners; provided, that the amount and quality
of such aggregated data provided to
13
NBC shall be no less than that provided to any other partner of DCCI. The
Parties shall work together to ensure that NBC is able to access and interpret
such data in a cost effective manner.
5. SERVICE AND PERFORMANCE COVENANTS.
5.1 DCCI. DCCI shall provide the services in this
Agreement and any exhibits thereto in accordance with the DCCI Service Levels
attached as Exhibit 5.1 hereto, which is incorporated herein by reference;
provided, that if at any time DCCI provides more favorable service level
guarantees to any other user of the :CRQ :Cue Technology, then the NBC :Cue
Users shall automatically and without any further action be granted the
benefit of such more favorable service levels, and Exhibit 5.1 shall be deemed
replaced by such more favorable service levels. Without limitation to any
other service covenants in this Agreement, each of the Parties represents and
warrants that it will take commercially reasonable measures during the Term to
provide secure and reliable operation of the services provided by that Party
under this Agreement to the extent under that Party's control and consistent
with industry customs and standards.
5.2 DCCI'S VIRTUAL NETWORK. Subject to the terms of
this Agreement, DCCI shall place NBC Marks and/or NBC Links on the Third Party
Banner Bar and in sections of the Category Tabs Bar in the format provided by
NBC as approved by DCCI (such approval not to be unreasonably withheld or
delayed). If DCCI needs to alter the NBC Marks and NBC Links to place them on
DCCI's Virtual Network, DCCI shall obtain pre-approval from NBC, not to be
unreasonably withheld. DCCI shall not discriminate against NBC in terms of the
size of, placement of or other parameter relating to any NBC Xxxx and NBC link
that NBC is entitled to place on DCCI's Virtual Network.
6. LICENSE FEE
6.1 FEES. In consideration for DCCI's licenses
hereunder, NBC shall pay DCCI (provided DCCI shall xxxx and accept payment by
the applicable NBC :Cue User if such NBC :Cue User has agreed in writing to
make all required payments to DCCI in accordance with the terms of this
Agreement, failing which agreement NBC will be responsible for all such
payments) the license fees set out below for each Commercial :Cue telecast
after the 90th day of the Term.
(a) CONTENT AND PROMOTIONAL :CUES. The NBC :Cue
Users shall be permitted to run Content and Promotional :Cues free of charge.
The Parties shall negotiate in good faith regarding an arrangement pursuant to
which the NBC
14
:Cue Users would be entitled to use Content :Cues and/or Promotional :Cues in
order to link viewers directly or indirectly to one or more Linked Websites
that are controlled by one or more third parties, and pursuant to which such
NBC :Cue Users would be entitled to receive compensation; provided, that if
such agreement is reached between NBC and DCCI, any net revenues actually
received by the NBC :Cue Users in connection therewith would be split eighty
percent (80%) to the applicable NBC :Cue User and twenty percent (20%) to
DCCI, with the more specific terms of such arrangement to be mutually agreed;
and failing such agreement, Content and Promotional :Cues must run free of
charge.
(b) COMMERCIAL :CUES FOR NBC NETWORK. NBC Network
shall pay: (i) $2,000 per Commercial :Cue telecast in all news and sports
programs, regardless of the time such programs are run, and in all
entertainment programs run during Network Prime Time hours, and (ii) $1,000
per Commercial :Cue for all other Commercial :Cues; provided, however, that
NBC is permitted to run a reasonable number of Commercial :Cues (to be
mutually agreed upon between the Parties in writing) during NBC's television
coverage of the 2000 Olympics free of charge.
(c) COMMERCIAL :CUES FOR NBC CABLE NETWORKS. Each
NBC Cable Network that telecasts a Commercial :Cue shall pay: (i) $500 per
Commercial :Cue telecast during Cable Prime Time hours, and (ii) for all other
Commercial :Cues, $250 per Commercial :Cue telecast.
(d) COMMERCIAL :CUES FOR NBC STATIONS. Each NBC
Station that telecasts Commercial :Cues shall pay: (i) a Prime Time Fee, which
is listed in the chart below by Market, per Commercial :Cue telecast during
Station Prime Time hours, and (ii) for all other Commercial :Cues, a Non-Prime
Time Fee, which is in the chart below by Market, per Commercial :Cue telecast:
Prime Time Non-Prime Time
Market Fee Fee
------ --- ---
Xxx Xxxx, XX 000 000
Xxx Xxxxxxx, XX 500 250
Chicago, IL 400 200
Philadelphia, PA 400 200
Xxxxxxxxxx, X.X. 000 000
Xxxxx, XX 350 175
San Diego, CA 200 000
Xxxxxxxx, XX 000 000
Xxxxxxx, XX 100 50
15
Columbus, OH 100 50
Birmingham, AL 100 50
Providence, RI 100 50
Dallas, TX Excluded Excluded
The foregoing rates are payable for Commercial :Cues in thirty (30) second
commercial spots. The fees for :Cues in commercial spots of greater or lesser
duration shall be adjusted up or down on a pro-rata basis based on the actual
length of the spot.
(e) COMMERCIAL :CUES DIRECTED TO SPECIFIC
DEMOGRAPHICS. If, during the Term, DCCI develops and commercially deploys the
ability to direct viewers to a specific Linked Website tailored to such viewer
based on his/her demographic profile, then DCCI shall make such technology
available to the NBC :Cue Users. The premium over the standard fees payable by
the NBC :Cue Users to DCCI for such targeting technology shall be mutually
agreed upon by the Parties, but shall not exceed 50% of the fees set forth
above.
6.2 PAYMENT OF FEES. Within forty five (45) days after
the end of each Quarter, NBC shall furnish and/or cause each NBC :Cue User to
furnish DCCI a :Cue Report and pay the fees due under Section 6.1 above for
the prior Quarter.
6.3 MOST FAVORED NATIONS STATUS.
(a) The fees charged by DCCI to the NBC
Network shall at no time be higher than the fees charged to any other U.S.
over-the-air national television network.
(b) The fees charged by DCCI to NBC Stations
shall at no time be higher than the fees charged to Fox affiliates, if any, in
the same Market as the applicable NBC Station.
(c) The fees charged by DCCI to NBC Cable
Networks shall at no time be higher than the fees charged to any comparable
cable networks, set forth on the list attached hereto as Exhibit 6.3.
6.4 TAXES. Each Party shall be responsible for any and
all taxes, if any, incurred in connection with this Agreement.
7. AUDIT RIGHTS.
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7.1 AUDIT. Upon thirty (30) business days' notice, each
Party may inspect, or have a mutually agreeable independent auditor inspect,
the books and records of the other Party to verify compliance with the terms
and conditions of this Agreement. Any such audit shall be conducted at the
audited Party's relevant facilities during normal business hours. Each Party
may invoke its audit rights under this Section 7.1 once every year during the
Term of this Agreement and for one (1) year thereafter. The auditing Party
shall conduct, or cause to be conducted, such audit at its own expense, except
that the auditing Party shall be entitled to reimbursement of its auditing
expenses by the auditing Party in the event that such audit reveals that the
audited Party has overcharged the other Party for an amount fairly valued at
an amount greater than five percent (5%) of the proper amount, or properly
valued amount, for the audited time period. Each Party shall only have access
to those records necessary to verify the fees and data required to be paid and
tracked, respectively, under this Agreement. Each party must use a Certified
Public Account to conduct an audit under this Section 7.
7.2 RECORDS. Each Party shall maintain complete and
accurate records in accordance with sound accounting or other customary
practices to substantiate fees or charges and will preserve such records for a
period of at least one (1) year after the Term of this Agreement.
8. TERMINATION.
8.1 TERMINATION BY EITHER PARTY. Before the end of the
Term, either DCCI or NBC may terminate this Agreement (except for those terms
that survive termination): (i) upon thirty (30) days written notice to the
other Party, if such other Party has defaulted in the performance of any
material provision of this Agreement (timely accounting and payment as
provided herein being material) and fails to cure such default prior to
expiration of thirty (30) days after such notice; or (ii) upon written notice
to the other Party upon: (a) the institution by or against such other Party of
insolvency, receivership or bankruptcy proceedings or any other proceedings
for the settlement of such Party's debts, (b) such other Party's making an
assignment for the benefit of creditors, or (c) upon such other Party's
dissolution or ceasing to do business.
8.2 TERMINATION BY NBC. Upon any Change of Control of
DCCI other than with respect to its Initial Public Offering, NBC may terminate
this Agreement upon thirty (30) days prior written notice to DCCI. For the
purposes of this Section 8.2, "Change of Control" means the occurrence of any
of the following events with respect to DCCI at any time during the Term: (a)
any Person or group (within the meaning of the Securities Exchange Act of
1934, as amended) that is an NBC Competitor shall have become the beneficial
owner of securities representing
17
more than fifty percent (50%) of the aggregate voting power of the then
outstanding securities of DCCI; (b) any merger, consolidation or other
transaction between DCCI and a Person that is an NBC Competitor immediately
following which the holders of common equity securities of DCCI immediately
prior to such transaction do not own more than fifty percent (50%) of the
common equity securities of the surviving entity; or (c) the sale of all or
substantially all of the assets of DCCI to an NBC Competitor. "NBC Competitor"
means ABC, CBS, Fox, Warner Brothers network ("WB"), United Paramount Network,
("UPN"), America Online, Inc. ("AOL"), Yahoo! Inc., Excite@Home, Lycos, Inc.
and any Affiliate of any of the aforementioned companies.
8.3 EFFECT OF TERMINATION. Notwithstanding anything
stated herein, if this Agreement is terminated for any reason by either DCCI
or NBC, all rights and licenses granted pursuant to this Agreement shall
immediately revert and be fully vested in the grantor. In such event, each
Party shall promptly return to the other Party all Intellectual Property,
software and related documentation, hardware, or other goods provided by such
Party hereunder, unless otherwise agreed. In addition, NBC shall have forty
five (45) days to submit or cause the NBC :Cue Users to submit a :Cue Report
and to pay any fees or cause NBC :Cue Users to pay any fees due to DCCI
pursuant to Section 6 herein. Following termination, DCCI shall have the
option of terminating existing links to NBC-Related Websites or Linked
Websites effected through :Cues created during the Term and/or inserting a
message to be displayed to users attempting to activate a :Cue created during
the Term notifying them that the :Cue is no longer available.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS.
9.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF DCCI.
DCCI hereby represents and warrants to NBC, and covenants and agrees with NBC
that: (a) it has the right, power and authority to enter into this Agreement
and perform its obligations as set forth herein; (b) it is under no obligation
or restriction, nor will it assume any such obligation or restriction, that
does or would interfere or conflict with its obligations under this Agreement;
(c) it is either the owner of the :CRQ :Cue Technology or it has the right to
license to NBC the right to use such :CRQ :Cue Technology as licensed herein;
and (d) DCCI has not knowingly attached or authorized the attachment of any
virus, worm, Trojan horse or similar instrumentality to the :CRQ :Cue
Technology.
9.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF NBC.
NBC hereby represents and warrants to DCCI, and covenants and agrees with DCCI
that: (a) it has the right, power and authority to enter into this Agreement
and perform its obligations as set forth herein; (b) it is under no obligation
or restriction, nor will it
18
assume any such obligation or restriction, that does or would interfere or
conflict with its obligations under this Agreement; (c) it will furnish DCCI
with accurate, up-to-date URL addresses of Linked Websites; (d) NBC Controlled
Linked Websites will not contain any content that is obscene, indecent,
libelous or slanderous, or which infringes on the rights of third parties or
which is in violation of any laws or statutes; (e) NBC has, or will obtain on
or prior to the time a particular :Cue is telecast, the right to authorize
DCCI to effect links to the NBC-Related Websites, and to have the Virtual
Network appear on and in connection with NBC-Related Websites, (f) when
arranging to effect links to Non-NBC Controlled Linked Websites, it will
provide the owners and/or operators of such Linked Websites with a notice
prepared by DCCI and made available to the NBC :Cue Users which shall contain
DCCI's standard terms with respect to :Cues, and (g) NBC or its Affiliates
have not knowingly attached or authorized the attachment of any virus, worm,
Trojan horse or similar instrumentality to any content or software on the
NBC-Related Websites.
9.3 DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER
WARRANTIES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
10. INDEMNIFICATION.
10.1 INFRINGEMENT INDEMNIFICATION.
DCCI shall indemnify, defend and hold harmless NBC, the NBC :Cue Users, their
Affiliates and their respective officers, shareholders, agents, directors,
members, employees and agents (the "RELATED INDEMNIFIED PARTIES"), from and
against any and all losses, claims, liabilities, damages, costs and expenses
(including, without limitation, reasonable outside attorneys' fees) arising
out of or incurred by any NBC Party as a result of any actual or threatened
third party (i.e., not an Affiliate, for the purposes of this Section 10)
claim, action, investigation, proceeding or suit (each, a "CLAIM") alleging
that the licensing, use, reproduction, display, publishing, distribution or
other exploitation of the :CRQ :Cue Technology by any of the NBC Parties in
accordance with the rights granted hereunder constitutes an infringement,
dilution or unauthorized use of any patent, copyright, trademark, trade
secret, proprietary information, right of privacy or any other proprietary
right of any third party (collectively, an "INFRINGEMENT"). NBC similarly
shall indemnify, defend and hold harmless DCCI and its Related Indemnified
Parties from and against any and all Claims alleging that the licensing, use,
reproduction, display, publishing distribution
19
and other exploitation of content and/or software contained on all NBC
Controlled Linked Websites, and/or in the programming of any NBC:Cue User,
constitutes an Infringement, or that NBC's authorization of any such link was
not permitted. To the extent that NBC obtains an indemnity from parties who
own or control any and all Non-NBC Controlled Linked Websites to indemnify,
defend and hold harmless NBC and/or its Related Indemnified Parties from and
against Claims alleging that the licensing, use, reproduction, display,
publishing distribution and other exploitation of content and/or software
contained on such Non-NBC Controlled Linked Websites, constitutes an
Infringement, NBC shall indemnify, defend and hold harmless DCCI and its
Related Indemnified Parties from such Claims to the same extent.
(a) In the event some or all of the :CRQ :Cue
Technology is held by a court of competent jurisdiction to infringe a third
party proprietary right, an injunction is obtained against use of any material
portion of the :CRQ :Cue Technology, then DCCI shall promptly, at its option
and expense, either: (i) procure for NBC the right to continue to use the
infringing :CRQ :Cue Technology as set forth in this Agreement, (ii) replace
or modify the infringing :CRQ :Cue Technology to make its use non-infringing
while being capable of performing essentially the same functions, or (iii) if,
using its best efforts, DCCI is unable to do either of the aforementioned
options, then DCCI may require NBC to return the infringing material and shall
refund to NBC any fees paid to DCCI under this Agreement and have the option
of terminating this Agreement. The foregoing shall be NBC's sole remedy in the
event the :CRQ :Cue Technology is found to be infringing.
10.2 CROSS INDEMNITY. Each Party (the "INDEMNIFYING
PARTY") shall indemnify and hold harmless the other Party, and their
respective officers, directors, members, employees and agents (the
"INDEMNIFIED PARTY") from and against any and all Claims instituted by third
parties, as well as any and all losses, liabilities, damages, costs and
expenses (including reasonable attorneys fees) arising out of or accruing
from: (a) any misrepresentation or breach of the Indemnifying Party's
representations and warranties set forth in this Agreement; and (b) any
noncompliance by the Indemnifying Party with any covenants, agreements or
undertakings of such party contained in or made pursuant to this Agreement.
10.3 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, NEITHER PARTY, NOR THEIR RESPECTIVE EMPLOYEES, OFFICERS,
DIRECTORS, AFFILIATES, AGENTS OR SUPPLIERS, SHALL BE LIABLE FOR ANY
CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR LOST OR IMPUTED
PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES ARISING FROM OR RELATED TO THIS
20
AGREEMENT, WHETHER FOR BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM
OR OTHERWISE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING
NEGLIGENCE OR STRICT LIABILITY), AND IRRESPECTIVE OF WHETHER THE PARTY HAS
ADVISED OR BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. UNDER
NO CIRCUMSTANCES SHALL NBC BE ENTITLED TO SPECIFIC PERFORMANCE, INJUNCTIVE
RELIEF OR OTHER EQUITABLE REMEDY ARISING OUT OF, OR RELATED TO THE SUBJECT
MATTER OF, THIS AGREEMENT AND NBC WAIVES ALL RIGHTS THERETO.
11. CONFIDENTIALITY.
11.1 GENERAL. Confidential Information is all
information disclosed in connection with this Agreement which when provided
hereunder is designated in writing or by other reasonable means as
confidential, including, without limitation, all technical data, trade
secrets, plans for products or services, customer data or lists, marketing
plans, financial documents or data, processes and designs ("CONFIDENTIAL
INFORMATION"). During the Term and for a period of three (3) years thereafter,
each Party shall treat as confidential all Confidential Information of the
other Party, shall not use such Confidential Information except as set forth
herein, and shall not disclose such Confidential Information to any third
party. Without limiting the foregoing, each of the Parties shall use at least
the same degree of care which it uses to prevent the disclosure of its own
confidential information of like importance to prevent the disclosure of
Confidential Information disclosed to it by the other Party under this
Agreement, but in no event less than reasonable care. Each Party shall
promptly notify the other Party of any actual or suspected misuse or
unauthorized disclosure of the other Party's Confidential Information. Upon
expiration or termination of this Agreement, each Party shall return all
Confidential Information received from the other Party. Any breach of the
restrictions contained in this Section 11 is a breach of this Agreement that
may cause irreparable harm to the nonbreaching Party. Any such breach shall
entitle the nonbreaching Party to injunctive relief in addition to all legal
remedies.
11.2 EXCLUSIONS. Notwithstanding the above, neither
Party shall have liability to the other with regard to any Confidential
Information of the other which: (i) was in the public domain at the time it
was disclosed or has entered the public domain through no fault of the
receiving Party, (ii) was known to the receiving party through legal means and
without restriction, at the time of disclosure, (iii) is disclosed with the
prior written approval of the disclosing Party, (iv) was independently
developed by the receiving Party without any use of the Confidential
Information, as reasonably demonstrated by the receiving Party, (v) becomes
known
21
to the receiving Party, without restriction, from a source other than the
disclosing Party without breach of this Agreement by the receiving Party and
otherwise not in violation of the disclosing Party's rights, (vi) is disclosed
generally to third parties by the disclosing Party without restrictions
similar to those contained in this Agreement, or (vii) is disclosed pursuant
to the order or requirement of a court, administrative agency, or other
governmental body; provided, that the receiving Party shall provide prompt
notice thereof to the disclosing party to enable the disclosing Party to seek
a protective order or otherwise prevent or restrict such disclosure. Each
Party shall be entitled to disclose the existence of this Agreement, but
agrees that the terms and conditions of this Agreement shall be treated as
Confidential Information and shall not be disclosed to any third party;
provided, that each Party may disclose the terms and conditions of this
Agreement (a) as required by any court or other governmental body, (b) as
otherwise required by law, (c) to legal counsel of the parties, (d) in
confidence, to accountants, banks and financing sources and their respective
advisors, (e) if necessary in connection with the enforcement of this
Agreement or rights under this Agreement, or (f) in confidence, in connection
with an actual or proposed merger, acquisition or similar transaction.
12. ADDITIONAL OPPORTUNITIES.
12.1 GENERAL ELECTRIC OPPORTUNITIES. To the extent
feasible, the parties will use good faith efforts to identify other
opportunities for DCCI's :CRQ :Cue Technology to be used within General
Electric Co. prior to DCCI's Initial Public Offering of Stock.
12.2 NETTALK LIVE. To the extent it is feasible during
the Term of the Agreement, the Parties will use reasonable efforts to identify
program distribution opportunities with NBC :Cue Users and NBC Affiliates for
DCCI's television program entitled "NetTalk Live," provided, however, that
each NBC :Cue User and Affiliate retains the right to solely select what
programs it runs.
13. MISCELLANEOUS.
13.1 BINDING NATURE AND ASSIGNMENT. This Agreement shall
be binding on the Parties hereto and their respective successors and assigns.
The Parties may not assign this Agreement without the prior written consent of
the other Party.
13.2 COMPLIANCE WITH LAW. Each Party shall comply with
all applicable laws, codes, ordinances, rules and regulations of the federal,
state and local governments, and of any and all political subdivisions and
regulatory authorities thereof. Each Party shall obtain all necessary permits
and licenses required in connection with the performance of it obligations
hereunder.
22
13.3 NOTICES. Any notice required or permitted by this
Agreement shall be in writing and shall be deemed sufficient upon receipt,
when delivered personally or by courier, overnight delivery service or
confirmed facsimile, or forty-eight (48) hours after being deposited in the
regular mail as certified or registered mail with postage prepaid, if such
notice is addressed to the Party to be notified at such Party's address or
facsimile number as set forth below:
IF TO DCCI:
DigitalConvergence.:com, Inc.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxx Xxxxxx
Facsimile: (000) 000-0000
E-mail: xxxxxxx@xxxxxxxxxxxxxxxxxx.xxx
------------------------------
With a courtesy copy to:
Franklin, Xxxxxxx, Xxxxxx & Xxxxxxxx, P.C.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
IF TO NBC:
National Broadcasting Company, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
With a courtesy copy to:
National Broadcasting Company, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
Either Party hereto may from time to time change its address
for notification purposes by giving the other prior written notice of the new
address and the date upon which it will become effective.
23
13.4 HEADINGS. The article and section headings used
herein are for reference and convenience only and shall not enter into the
interpretation hereof.
13.5 RELATIONSHIP OF PARTIES. The relationship between
the Parties is that of independent contractors and each Party assumes full
responsibility for each of its employees and shall be solely responsible for
the payment of compensation to its personnel. This Agreement does not render
either Party as the agent or legal representative of the other and does not
create a partnership or joint venture between them.
13.6 SEVERABILITY. If any provision of this Agreement is
declared or found to be illegal, unenforceable or void, then both parties
shall be relieved of all obligations arising under such provision, but only to
the extent that such provision is illegal, unenforceable or void, it being the
intent and agreement of the parties that this Agreement shall be deemed
amended by modifying such provision to the extent necessary to make it legal
and enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is legal and enforceable and
achieves the same objective. If the remainder of this Agreement shall not be
affected by such declaration or finding and is capable of substantial
performance, then, each provision not so affected shall be enforced to the
extent permitted by law.
13.7 PRESS RELEASES. Except to the extent required by
applicable law or as otherwise specified herein, any use by one Party of the
other Party's name, trademarks or service marks in any press releases,
customer lists, marketing materials or other announcements concerning the
matters covered by this Agreement, or for promotional, advertising or other
purposes, shall require the other Party's prior written approval.
13.8 WAIVERS. No delay or omission by either party
hereto to exercise any right or power hereunder shall impair such right or
power or be construed to be a waiver thereof. A waiver by either of the
parties hereto of any of the covenants to be performed by the other or any
breach thereof shall not be construed to be a waiver of any succeeding breach
thereof or of any other covenant herein contained. All remedies provided for
in this Agreement shall be cumulative and in addition to and not in lieu of
any other remedies available to either party at law, in equity or otherwise.
13.9 FORCE MAJEURE. If the performance of this Agreement
or any obligation hereunder is prevented, restricted or interfered with by
reason of fire or other casualty or accident, acts of God, severe weather
conditions, war or other violence, any law, order, proclamation, regulation,
ordinance, demand or requirement of any governmental agency, or any other act
or condition beyond the
24
reasonable control of the parties hereto, the party whose performance is so
affected shall be excused from such performance; provided, that if either
party invokes this Section for any consecutive period of thirty (30) days or
longer (or sixty (60) days or longer in any one year period), then the other
party may immediately terminate this Agreement without penalty, upon written
notice to such invoking party.
13.10 SURVIVAL OF TERMS. Termination or expiration of
this Agreement for any reason shall not terminate any rights, liabilities or
obligations that have either accrued prior to the effective date of
termination of this Agreement or the representations and warranties,
indemnification provision, limitations of liability or warranty disclaimers,
or any other provisions which the parties have expressly agreed shall survive
any such termination or expiration.
13.11 ENTIRE AGREEMENT. This Agreement and each Exhibit
attached hereto, each of which is incorporated herein for all purposes,
constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof, and there are no written or oral representations,
understandings or agreements relative hereto which are not fully expressed
herein. This Agreement and such Exhibits are intended to be the sole and
exclusive statement of the agreement between the parties hereto with respect
to the subject matter hereof and any other terms or conditions included in any
forms utilized or exchanged by the parties hereto shall be of no force or
effect and shall not be incorporated herein or be binding unless expressly
agreed to in writing by both parties hereto. No change, amendment, waiver or
discharge hereof shall be valid unless in writing and signed by an authorized
representative of the Party against which such change, amendment, waiver or
discharge is sought to be enforced.
13.12 GOVERNING LAW; JURISDICTION. This Agreement and all
acts and transactions pursuant hereto and the rights and obligations of the
parties hereto shall be governed, construed and interpreted in accordance with
the laws of the State of New York, without giving effect to principles of
conflicts of law. Each of the Parties to this Agreement consents to the
exclusive jurisdiction and venue of the state and federal courts of New York
County, New York.
13.13 COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original and all of
which together shall constitute one instrument. Fax signatures shall be deemed
as valid as original signatures.
[Signatures appear on the following page]
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IN WITNESS WHEREOF, DCCI and NBC have each caused this Licensing
Agreement to be executed and delivered by its duly authorized officer, to be
effective as of the Effective Date.
DIGITAL NATIONAL BROADCASTING
CONVERGENCE.:COM, INC. COMPANY, INC.
/s/ J. Xxxxx Xxxxxxx /s/ Xxxx Xxxxx
----------------------------- -----------------------------
Signature Signature
J. Xxxxx Xxxxxxx Xxxx Xxxxx
----------------------------- -----------------------------
Printed Name Printed Name
C.E.O.
----------------------------- -----------------------------
Title Title
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