EXHIBIT 17
AMENDED AND RESTATED
ABC NEWS/STARWAVE
MANAGEMENT AND SERVICES AGREEMENT
THIS AMENDED AND RESTATED MANAGEMENT AND SERVICES AGREEMENT including the
Exhibits attached hereto (this "AGREEMENT") is entered into as of June 18, 1998
by and among ABC, INC., a Delaware corporation ("ABC"), STARWAVE CORPORATION, a
Washington corporation ("STARWAVE") and ABC NEWS/STARWAVE PARTNERS, a New York
General Partnership (THE "PARTNERSHIP"); provided that, this Agreement shall
only become effective upon the Effective Time, as defined in and pursuant to
that certain Agreement and Plan of Reorganization, of even date herewith, by and
among Infoseek, Infoseek Company, a Delaware corporation, Starwave Corporation,
a Washington corporation, and Disney Enterprises, Inc., a Delaware corporation
("DEI") and shall cease and be of no further force and effect in the event that
the Effective Time does not occur; and provided further that, each of the
parties hereto agrees not to terminate, amend or otherwise alter this Agreement,
or waive any of its rights hereunder, at any time prior to immediately following
the Effective Time. This Agreement amends and restates in its entirety the
Management and Services Agreement by and between the parties hereof entered into
as of March 28, 1997 (the "Original Services Agreement"). DEI is a party to
this Agreement solely with respect to the provisions of Sections 3.3, 3.6, 5.2,
6.1, 6.2 and 10.7.
RECITALS
1. In connection with an investment in Starwave by DEI, Affiliates of each of
ABC and Starwave entered into a Partnership pursuant to a Partnership Agreement
dated March 28, 1997 (the "Original Agreement").
2. Pursuant to an agreement and plan of reorganization and a stock and warrant
purchase agreement (collectively, the "Acquisition Agreements"), DEI has agreed
to acquire approximately a 43% interest in the voting equity of Infoseek
Corporation, a California corporation ("Infoseek"), subject to the terms and
conditions set forth in the Acquisition Agreements.
3. In connection with the transaction contemplated under the Acquisition
Agreements, the Partners desire to amend and restate the Original Agreement by
entering into this Agreement.
THEREFORE, for good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, ABC, Starwave and the Partnership hereby agree as
follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms have the following
meanings:
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1.1 "ABC CONTENT" means all Content that is 100% owned or controlled by
ABC or its successors or assigns. For purposes of this Section 1.1, "control"
means the ability to grant the licenses set forth herein; provided however that
if such Content is subject to the payment of royalties or other consideration to
third parties, ABC will notify Starwave in writing in advance and the
Partnership shall have the right, at its option, to include such Content in the
definition of ABC Content.
1.2 "ABC TRADEMARKS" means "ABC News" and the other marks, trade names,
trademarks, brands, names, personalities, logos and representations thereof that
are properties of ABC or its Affiliates that appear within the ABC Content,
Programming, News Products or any other materials created in association with
this Agreement and that ABC or any of its Affiliates owns or controls.
1.3 "ADVISORY COMMITTEE" has the meaning specified in the Partnership
Agreement.
1.4 "AFFILIATE" means, with respect to any person, any person directly or
indirectly through one or more intermediaries controlling, controlled by or
under common control with such person. Notwithstanding the foregoing, for
purposes of this Agreement, Starwave shall not be considered as an Affiliate of
ABC or DEI.
1.5 "ANNUAL BUSINESS PLAN" has the meaning specified in the Partnership
Agreement.
1.6 "BROADBAND" means programming that requires transmission at data rates
which would enable real time, full screen, full motion video at equal to or
better than NTSC broadcast resolution.
1.7 "CONTENT" means audio and audio visual material, photographs, art
work, videos, graphics, text, and sound recordings.
1.8 "COSTS" means all direct costs and allocated costs, whether incurred
by ABC or DEI (including, without limitation, costs associated with Section 3)
or Starwave (including, without limitation, costs associated with Section 4) or
by the Partnership (as referenced in the Partnership Agreement), that are
associated with the development, production and exploitation of the News
Products.
1.9 "FIXED MEDIA PRODUCTS" means multimedia content products developed for
distribution to end users on any platform (including, without limitation, MS-
DOS, Windows, Macintosh, Sega, Nintendo, CD-ROM, Sony Playstation and 3DO
systems) designed to be read on an electronic device but excluding such products
if they include a Narrowband-delivered component and such products would not be
commercially competitive (as reasonably determined in good faith by the
Partners) without the inclusion of a Narrow-band delivered component.
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1.10 "FORCE MAJEURE EVENT" has the meaning specified in Section 10.5.
1.11 "INTELLECTUAL PROPERTY RIGHTS" means any and all (by whatever name or
term known or designated) tangible and intangible and now known or hereafter
existing (a) rights associated with works of authorship throughout the universe,
including but not limited to copyrights, moral rights, and mask-works, (b)
trademark, service xxxx and trade name rights and similar rights, (c) trade
secret rights, (d) patents, designs, algorithms and other industrial property
rights, (e) all other intellectual and industrial property and proprietary
rights (of every kind and nature throughout the universe and however designated)
(including without limitation logos, character rights, "rental" rights and
rights to remuneration), whether arising by operation of law, contract, license
or otherwise, and (f) all registrations, applications, renewals, extensions,
continuations, divisions or reissues thereof now or hereafter in force
throughout the universe (including without limitation rights in any of the
foregoing).
1.12 "NARROWBAND" means programming that does not require transmission at
data rates which would enable real time, full screen, full motion video at equal
to or better than NTSC broadcast resolution.
1.13 "NEWS PRODUCTS" means the Remote Access Products developed, produced,
marketed, distributed or otherwise exploited under the Partnership Agreement
containing broad national, international and local news media, including, by way
of example and without limitation, stories and features regarding national,
international and local affairs and stories and features regarding
business/finance, entertainment, weather, environmental and other subjects, to
the extent such subjects are of national or international significance or are
treated as such in traditional news media.
1.14 "PARTNERSHIP" means the general partnership formed by Affiliates of
Starwave and ABC and "PARTNERSHIP AGREEMENT" means the amended and restated
partnership agreement between such Affiliates, dated as of the date hereof.
1.15 "PERSON" means any individual, partnership, corporation, trust or
other entity.
1.16 "PROGRAMMING" means the programming included in the News Products
including, without limitation, all HTML, Java, and/or other formatted text
files, all related graphics files, animation files, data files, multimedia
files, modules, routines and objects, and the computer software and all of the
script or program files required to exploit such materials and that collectively
control the display of and end user interaction with the programming.
1.17 "REMOTE ACCESS PRODUCTS" means Programming intended for distribution
by any Narrowband interactive transmission method. This definition excludes any
and all Programming that requires Broadband transmission and also excludes (a)
products developed for PDAs, pagers, screen phones and other future handheld
devices and (b) Fixed Media Products.
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1.18 "RESTATED INITIAL BUSINESS PLAN" has the meaning specified in the
Partnership Agreement.
1.19 "STARWAVE TRADEMARKS" means "Starwave" and the other marks, trade
names, trademarks, brands, names, personalities, logos and representations
thereof that are properties of Starwave Partner or its Affiliates that appear
within the News Products or any other materials created in association with this
Agreement and that Starwave Partner owns or controls.
1.20 "TECHNOLOGY" means all software, hardware and middleware required or
appropriate to (i) transform the Content into the Programming, (ii) create,
modify or maintain the Programming, or (iii) deliver the Programming in an
online format.
1.21 "TERM" shall have the meaning set forth in Section 9.1.
1.22 "TERRITORY" means the United States and Canada.
2. STARWAVE OBLIGATIONS. During the Term, Starwave shall have the following
obligations to the Partnership:
2.1 HOSTING/NETWORK INFRASTRUCTURE. Starwave shall host all portions of
the News Products on Starwave servers, at the highest quality levels as Starwave
performs hosting services for any third party (i.e., having substantially
similar service requirements) and at a nominal xxxx-up to Costs on a cost-
effective basis and on most-favored-nations terms as those provided to any
similarly situated third party (i.e., having substantially similar service
requirements). Starwave shall be solely responsible for all Starwave network
infrastructure (i.e., telecommunications and connections to the Internet) in
conformance with the level of service that Starwave provides to itself or its
most valued partners and customers.
2.2 BILLING, COLLECTION, CUSTOMER SERVICE FUNCTIONS. Starwave shall be
responsible for billing, collection, customer service and other "back office"
functions for the Partnership at a nominal xxxx-up to Costs and on most-favored-
nations terms as those provided to any third party (i.e., having substantially
similar service requirements). All such services shall be performed by Starwave
at the highest quality levels Starwave performs services for any third party
(i.e., having substantially similar service requirements) and at a nominal xxxx-
up to Costs on a cost-effective basis and on most-favored-nations terms as those
provided to any similarly situated third party (i.e., having substantially
similar service requirements).
2.3 TECHNOLOGY DEVELOPMENT AND MAINTENANCE. Starwave shall be responsible
for the technology development and maintenance relating to the News Products, at
a nominal xxxx-up to actual costs and on most-favored-nations terms as those
provided to any third party (i.e., having substantially similar service
requirements), to the extent commercially reasonable. All such services shall
be performed by Starwave at the highest quality levels Starwave performs
services for any third party (i.e., having substantially similar service
requirements) and at a nominal xxxx-up to Costs on a cost-effective basis and on
most-favored nations terms as those provided to any similarly situated third
party (i.e., having substantially similar service
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requirements). It is the intention of the parties that the preponderance of the
technology development and maintenance relating to the News Products shall be
performed by Starwave. The General Manager (as defined in the Partnership
Agreement), in accordance with the Restated Initial Business Plan or Annual
Business Plans, may acquire or license additional or substitute Technology (i)
on an incidental and nonmaterial basis, (ii) if the Costs of acquiring or
licensing Technology from a third party are significantly less than the Costs to
the Partnership of acquiring or licensing such or similar Technology from
Starwave and such third party Technology from Starwave is fully scaleable and
compatible with other Technology used for the News Product and otherwise
appropriate for its intended uses, (iii) or if otherwise agreed and otherwise
appropriate for use in the News Products. In addition, the General Manager, in
accordance with the Restated Initial Business Plan or Annual Business Plans may
acquire or license additional or substitute Technology if, in the General
Manager's reasonable opinion, the inability to so acquire or license such
Technology would have a material impact on the overall quality and competitive
position of the News Products. In such event, Starwave shall have a three (3)
day period to meet with the General Manager to attempt to resolve the issues. If
the issues have not been resolved in the three (3) day period, the General
Manager shall be entitled to present the issues to the Partners for resolution
based upon the mutual agreement of the Partners. During the Term, such
technology development and maintenance (or a portion thereof) may become a
responsibility of the Partnership or the Partners collectively, upon the mutual
agreement of the parties.
2.4 USAGE TRACKING.
(a) Starwave will track traffic in the News Products and shall provide
ongoing access to reports on such traffic to ABC.
(b) Starwave shall from time to time promptly deliver to ABC upon
ABC's request, the names, addresses and other identifying information of users
of the News Products who complete merchandise, advertising, promotional or
subscription transactions over the News Products.
(c) The parties shall have the right to use all data provided by
Starwave under subsections (a) or (b) above in any manner, subject to a mutually
agreed privacy policy and credit policy. All such data shall be owned by the
Partnership. Each party agrees that during the term it shall not provide such
data to any third party, except as may be mutually agreed.
(d) Starwave acknowledges and agrees that the News Products may
contain registration forms and/or questionnaires for users to complete in
connection with contests, promotions or other features of the News Products.
Starwave acknowledges and agrees that such information shall be solely owned by
the Partnership and may be used for either party's and its respective
Affiliates' business purposes, but may not be provided to any third party
(except advertisers), except as may be mutually agreed.
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2.5 EXISTING TECHNOLOGY. Starwave shall provide, on a royalty free basis,
Technology existing as of the date of this Agreement, including, without
limitation, interactive software development tools, middleware and engines owned
or licensed by Starwave or its Affiliates (provided that Starwave has the right,
with no additional monies owed, to license any such technology to ABC, subject
to Section 5.1) for use in the development and delivery of the News Products.
Such Technology shall be licensed by Starwave, on a royalty free basis.
2.6 OTHER TECHNOLOGY. Starwave shall provide such additional technology
owned or licensed by Starwave or its Affiliates (provided that Starwave has the
right, with no additional monies owed, to license any such technology to ABC,
subject to Section 5.1) that may be useful or necessary in the development of
the News Products, under an agreement to be negotiated in good faith between the
parties within sixty (60) days of the date hereof. If an agreement is not timely
entered into, such Technology shall be provided by Starwave at fair market
rates.
2.7 INFRASTRUCTURE. Starwave shall provide appropriate staffing, support
and infrastructure to fulfill its obligations under this Agreement, including,
without limitation, sufficient dedicated personnel to meet its obligations set
forth under Sections 2.1, 2.2., 2.3 and 2.4, in accordance with the Restated
Initial Business Plan and any Annual Business Plan.
2.8 [INTENTIONALLY OMITTED]
3. ABC AND DEI OBLIGATIONS. During the Term, ABC and DEI shall have the
following obligations to the Partnership.
3.1 CONTENT. Pursuant to Section 6.1, ABC shall provide the Partnership
with a royalty-free license to all ABC Content or Content of its successors-in-
interest which is appropriate for use in the News Products, including without
limitation both television and radio programming. For the avoidance of doubt,
Content provided shall include without limitation all news programs (e.g.,
Evening News), news magazines (e.g., 20/20) and morning shows (e.g., Good
Morning America), subject to cancellation of current programming and the
inclusion of all owned or controlled news programming as set forth in Section
1.1.
3.2 CONTENT DEVELOPMENT/TRANSFORMATION/INTEGRATION. At Costs set forth in
the Restated Initial Business Plan or applicable Annual Business Plan, ABC shall
be responsible for the development of ABC Content for the News Products and for
the transformation of ABC Content into Programming and integration of the
Programming into the News Products. The senior employee in such group shall
report on a day-to-day basis to the General Manager, with direct reporting as
well to an ABC designated executive for oversight of editorial and creative
aspects of the ABC Content.
3.3 ON-AIR MARKETING/PROMOTION. At no charge, ABC shall provide
reasonable marketing and promotion for the News Products on its television and
radio networks, in amounts, formats and frequencies determined by ABC, in its
sole discretion, provided, that ABC shall market and promote ABC Xxxx.xxx in a
manner generally consistent with ESPN's
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marketing and promotion of ESPNET SportsZone, taking into consideration (i) the
differences between news and sports programming, marketing and promotion, (ii)
the appropriateness of any particular marketing and promotional opportunity, and
(iii) the overall reach and ratings differences among the various on-air
programs on which ABC Xxxx.xxx is promoted as compared with the on-air programs
on which ESPNET SportsZone is promoted, in each case, as determined by DEI. For
the avoidance of doubt, it is understood and agreed that the provisions of this
Section 3.3 shall not limit the promotional services obligations of DEI and its
Affiliates under that certain Promotional Services Agreement of even date
herewith.
3.4 INFRASTRUCTURE. ABC shall provide appropriate staffing, support and
infrastructure, including reasonable access to the ABC News Broadcast Newsroom
infrastructure, to fulfill its obligations under this Agreement.
3.5 ON-AIR TALENT. Subject to Section 3.7(a) and (c), and at no charge,
ABC shall provide appropriate access (in its sole discretion) to on-air talent
for use in connection with the News Products.
3.6 GROUP ADVERTISING SALES. At Costs set forth in the Restated Initial
Business Plan or applicable Annual Business Plan, DEI shall provide, with
ongoing participation by the Partnership, group advertising sales services
(i.e., combining advertising sales services for the News Products of the
Partnership with additional News Products that may be developed by the
Partnership or the parties, individually or in other arrangements such as ESPNET
SportsZone and Disney Online).
3.7 ABC'S CONTROL.
(a) EDITORIAL AND CREATIVE. ABC shall exercise sole and final control
over all editorial and creative aspects of the News Products and all portions
thereof.
(b) ABC NETWORK AFFILIATE RELATIONS. ABC shall exercise sole and
final control over all ABC Network affiliate relations matters associated with
the News Products.
(c) MARKETING AND PROMOTIONS. ABC shall exercise sole and final
control over all uses or references to any ABC Trademark contained in marketing
and promotions associated with the News Products. Any use of an ABC Trademark
by the Partnership or Starwave shall require the prior approval of ABC, which
may be withheld at ABC's sole discretion. ABC shall use its reasonable efforts
to promptly respond to requests from the Partnership for use of the ABC
Trademarks. ABC shall cooperate in good faith with the Partnership to agree on
a templated use of ABC Trademarks from time to time to avoid recurrent
approvals.
4. MERCHANDISING
DEI agrees to provide (or cause its Affiliates to provide) and the
Partnership agrees to purchase (subject to agreement on terms) e-commerce
services to the Partnership, including,
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without limitation, store design, transaction processing, web hosting, inventory
management, fulfillment and customer service. In exchange for such services, the
Partnership shall pay DEI its costs in providing such services, plus a to-be-
agreed markup on such costs or a to-be-agreed upon revenue share. In addition,
the Partnership shall have joint ownership of all customer information for use
for its business purposes
5. EXCLUSIVITY
5.1 STARWAVE EXCLUSIVITY. During the Term and in the Territory and except
for activities associated with the development and expansion of the news
Component of the Portal Products and Search or Directory and further excluding
the News Products within the Partnership, Starwave and its Affiliates shall not
develop, distribute, produce, or market or promote on-air, or exploit or provide
services of any nature or provide a license or permit a third party to utilize
any of their respective Intellectual Property Rights with respect to any Remote
Access Products that are dedicated primarily to national and international news,
including, by way of example and without limitation, stories and features
regarding national, international and local affairs and stories and features
regarding business/finance, entertainment, weather, environmental and other
subjects, to the extent such subjects are of national or international
significance or are treated as such in traditional news media. Notwithstanding
the foregoing, Starwave Partner and its Affiliates may engage in such activities
with respect to any Remote Access Products dedicated primarily to entertainment
news or personal finance news.
5.2 DEI EXCLUSIVITY. During the Term and in the Territory, DEI and its
Affiliates shall not develop, distribute, produce, or market or promote on-air
(subject to the current agreement between ABC and America Online, Inc., dated
March 5, 1997, as amended which will not be renewed), or exploit or provide
services of any nature or provide a license or permit a third party to utilize
any of their respective Intellectual Property Rights with respect to any Remote
Access Products that are dedicated primarily to national, international and
local news, including, by way of example and without limitation, stories and
features regarding national and international affairs and stories and features
regarding business/finance, entertainment, weather, environmental and other
subjects, to the extent such subjects are of national or international
significance or are treated as such in traditional news media. Notwithstanding
the foregoing, ABC Partner and its Affiliates may engage in such activities with
respect to any Remote Access Products dedicated primarily to entertainment news.
If during the Term, DEI or its Affiliates develops or owns an entertainment news
Remote Access Product that competes with Mr. Showbiz, DEI and its Affiliates
shall, at Starwave's option, either take all necessary action to have the
Partnership (a) assign back to Starwave all right, title and interest of the
Partnership in Mr. Showbiz or (b) continue to own Mr. Showbiz but permit
Starwave to develop and market Mr. Showbiz as an independent property without
the restrictions set forth in Section 5.1; provided, that in each case, Starwave
shall provide the Partnership with a royalty-free license (subject to compliance
with a promotion plan to be mutually agreed upon by the Partners in writing) to
use Mr. Showbiz as part of the Remote Access Products during the Term and, in
the case of clause (b), DEI's appropriate Affiliates shall continue to promote
Mr. Showbiz as provided in such promotion plan.
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5.3 ADDITIONAL REMOTE ACCESS PRODUCTS. If ABC determines, in its sole
discretion, to develop general news Remote Access Products targeted for users on
an international or foreign (country or regional) basis, the Partnership shall
participate in such development on similar terms to those reflected in the
Partnership Agreement (while taking into consideration additional terms and
potential partners that may be applicable in any particular potential
transaction).
5.4 NO OTHER RESTRICTIONS. Except as expressly set forth in this Section
5, neither ABC and its Affiliates, on the one hand, nor Starwave and its
Affiliates, on the other hand, shall be subject to any restrictions on the
licensing, use, distribution or other exploitation of their respective
properties (including all Intellectual Property Rights therein), that either of
their respective Affiliates own, control, have a license to, or in which they
have any other form of right, title or interest.
5.5 BROADBAND APPLICATIONS. For clarification purposes, ABC and its
Affiliates, on the one hand, and Starwave and its Affiliates, on the other hand,
in their respective sole discretion, may develop, produce, exploit or provide
services of any nature with respect to programming designed specifically for
Broadband delivery (i.e., content that requires Broadband transmission to
satisfactorily deliver services to consumers). ABC agrees to investigate
(without any obligation) cooperation with Starwave in the development of
products designed for Broadband delivery.
6. PROPRIETARY RIGHTS
6.1 GRANT OF RIGHTS. Subject to the Partnership's and Starwave's
compliance with the terms and conditions set forth herein, including without
limitation ABC's rights set forth in Section 3.7, ABC hereby grants the
Partnership (by Partnership or by a third party on behalf of Partnership) the
following limited, royalty-free, non-exclusive (except as exclusive with respect
to Narrowband services in accordance with the provisions hereof), non-
transferable licenses, without right of sublicense, during the Term hereof:
(a) to use, reproduce, modify and adapt the ABC Content to create the
Programming;
(b) to reproduce, transmit, distribute, display and perform the
Programming worldwide as part of the News Products; and
(c) to reproduce and display the ABC Trademarks (including the
descriptive names for the News Products).
6.2 USE OF DISNEY NAME. Neither the Partnership nor Starwave shall have
the right to use the name, likeness or voice of Xxxx Disney, the word "Disney,"
any likeness of any DEI animated character or any other trademark, tradename or
logo of DEI for any manner
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whatsoever; provided, that the Partnership may use such items solely as
necessary for editorial purposes.
6.3 PROPRIETARY NOTICES. As a condition to the grant of rights hereunder,
any matter containing ABC Content, including without limitation the Programming
shall bear properly located copyright and trademark notices as prescribed by law
in ABC's name. The Partnership and Starwave will comply with such instructions
as to form, location and content of the notice as ABC may give from time to
time. If by inadvertence a proper copyright notice in ABC's or the ABC
Affiliate's name, as applicable, is omitted from the Programming or any material
containing ABC Content, the Partnership and Starwave agree at their respective
expense (to the extent the omission is caused by the Partnership or Starwave) to
use all reasonable efforts to prospectively correct any such omission. The
Partnership and Starwave agree to promptly respond to ABC's request to make any
such corrections.
6.4 OWNERSHIP OF MATERIALS DEVELOPED BY EACH PARTY. Subject to ABC's
ownership at all times of the ABC Content, and to Sections 6.5 and 6.6, each
party shall own all right, title and interest in (a) any and all materials it
developed prior to or during the Term and all Intellectual Property Rights
therein and (b) any and all Technology, Content (other than ABC Content, if any)
and Programming it developed and funded (i.e., without Partnership or joint
funding) during the Term and all Intellectual Property Rights thereto.
6.5 PARTNERSHIP OWNED MATERIALS. The Partnership shall jointly own all
the Technology, Content (other than ABC Content, if any) and Programming
developed and funded by the Partnership during the Term for the News Products.
6.6 OWNERSHIP BY ABC.
(a) The Partnership and Starwave acknowledge and agree that, as
between the Partnership and Starwave, on the one hand, and ABC, on the other
hand, the ABC Content, and all portions and derivative works thereof (other than
the Programming), whether created by the Partnership, Starwave or ABC, shall be
owned by ABC and to the extent that the Partnership or Starwave owns any right,
title and interest in the ABC Content, each hereby assigns all such right,
title, and interest therein to ABC, including without limitation all
Intellectual Property Rights therein, provided that Starwave shall retain all
right, title and interest, including all Intellectual Property Rights in, all
development tools, software or other technology developed and funded by Starwave
and embodied in or used by Starwave in connection with Starwave's development of
the Programming. Subject only to Section 5 and Starwave's ownership rights
hereunder and under the Partnership Agreement, ABC may utilize, distribute and
otherwise exploit in any manner the ABC Content and derivative works thereof
(other than the Programming) now existing or hereafter developed without any
obligation to the Partnership or Starwave; it being understood that no license
under Starwave Intellectual Property Rights shall be implied from the foregoing.
(b) ABC shall own all URLs containing "ABC", and any and all other
URLs with any variant of any ABC Trademark, including, without limitation, any
URLs that also
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include any other name or description in addition to an ABC Trademark and ABC
shall own the descriptive names for the News Products (i.e., ABC News Now and
additional or substitute descriptive names) that contain an ABC Trademark.
(c) Starwave Partner shall own all Technology used in connection with
the operation of the News Products that was owned by Starwave Partner prior to
the Effective Time.
(d) The Partnership has the sole right to license the descriptive
names for the News Products; provided that the Partnership shall be required to
provide such a license to ABC or its Affiliates for their own business purposes
for a fair market value royalty to be paid to the Partnership (as determined in
good faith by the Partners). If such license is to a third party (other than
Infoseek or an Infoseek Affiliate (but excluding DEI and its Affiliates) in
connection with Portal Products (as defined in the Partnership Agreement)), the
terms shall include a fair market value royalty to be paid to the Partnership
(as determined in good faith by the Partners).
6.7 NO ADDITIONAL PARTICIPATION. Nothing in this Agreement conveys to the
Partnership or Starwave and, other than as specifically set forth hereunder, the
Partnership and Starwave shall not have or acquire, any right to participate in
any other promotions or activities relating to the ABC Content or any other ABC
activity or product, which rights are retained exclusively by ABC.
6.8 LITIGATION. Should one party become aware of any infringing use of
its property (including Intellectual Property Rights), such party shall notify
the other party and the other party may, within its sole discretion, undertake
to prosecute necessary actions to prevent such use or distribution. In the
event that both parties are joined in any such litigation, the decisions of the
counsel of the party with the affected properties with reference to matters of
procedure, conduct of such litigation and/or the handling thereof, shall prevail
and the other party shall cooperate with and assist counsel. Any recovery shall
be the sole property of the party with the affected properties.
7. CONFIDENTIAL INFORMATION
The definition and use of each party's "Confidential Information" by the other
parties shall be governed by the terms of that certain Mutual Non-Disclosure
Agreement between the parties dated March 28, 1997
8. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION
8.1 WARRANTIES OF STARWAVE. Starwave represents and warrants that (a) it
has the right, power and authority to enter into this Agreement and fully to
perform its obligations under this Agreement; (b) the making of this Agreement
by it does not violate any agreement existing between it and any other person or
entity; (c) it complies, and at all times shall comply, with all applicable
laws, rules and regulations in effect at the time services are performed
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pursuant to this Agreement pertaining to the subject matter hereof; and (d)
Starwave shall not exercise any of the rights granted to it under or pursuant to
this Agreement in a manner that shall violate any applicable law, rule or
regulation.
8.2 INDEMNIFICATION OBLIGATIONS OF STARWAVE. Starwave agrees to, and
shall, indemnify, defend and hold harmless ABC and its Affiliates and their
respective directors, shareholders, officers, agents, employees, successors and
assigns from and against any and all claims, demands, suits, judgments, damages,
costs, losses, expenses (including reasonable attorneys' fees and expenses) and
other liabilities arising from actions brought by third parties, for (a) any
breach or alleged breach of any of the representations or warranties made by it
under this Agreement; (b) any unauthorized use by it or any of its
subcontractors of any ABC Content or any portion of the Programming; (d) any
infringement of such third party's copyrights contained in the portions of the
Programming that are owned or controlled by Starwave or in all technology,
software, data, and content therein that are supplied by Starwave; provided that
ABC shall promptly notify Starwave of any such claim and Starwave shall be given
sole control and bear full responsibility for the defense (including any
settlements) of any such claim; and ABC shall provide Starwave with prompt
notice and full information and reasonable assistance at Starwave's expense with
respect to claims covered under this Section 8.2. Starwave shall keep ABC
informed of, and consult with ABC in connection with the progress of such
litigation or settlement; and Starwave shall not have any right, without ABC's
written consent, to settle any such claim if such settlement arises from or is
part of any criminal action, suit or proceeding or contains a stipulation to or
admission or acknowledgment of, any liability or wrongdoing (whether in
contract, tort or otherwise) on the part of any ABC Affiliate.
8.3 WARRANTIES OF ABC. ABC represents and warrants that (a) it has the
right, power and authority to enter into this Agreement, to grant the licenses
herein granted, and to fully perform its obligations under this Agreement; (b)
the making of this Agreement by it does not violate any agreement existing
between it and any other person or entity; (c) it has all necessary rights in
and to the Programming and any ABC Content provided by ABC hereunder for use
within the scope of this Agreement; (d) it complies, and at all times shall
comply, with all applicable laws, rules and regulations in effect at the time
services are performed pursuant to this Agreement pertaining to the subject
matter hereof; and (e) ABC shall not exercise any of the rights granted to it
under or pursuant to this Agreement in a manner that shall violate any
applicable law, rule or regulation.
8.4 INDEMNIFICATION OBLIGATIONS OF ABC. ABC agrees to, and shall,
indemnify, defend and hold harmless Starwave and its Affiliates, and its
directors, shareholders, officers, agents, employees, successors and assigns
from and against any and all claims, demands, suits, judgments, damages, costs,
losses, expenses (including reasonable attorneys' fees and expenses) and other
liabilities arising from actions brought by third parties, in connection with or
related to, directly or indirectly, (a) its performance of the Agreement; (b)
any breach or alleged breach of the representations, warranties and agreements
made by it under this Agreement; (c) its activities hereunder, including without
limitation, any unauthorized use by it or any of its subcontractors of any ABC
Content or any portion of the Programming; (d) any act or omission of it, its
directors, officers, agents, employees or subcontractors; or (e) any
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violation or infringement by ABC of any right of privacy or publicity or any
other Intellectual Property Right within the Territory or any libelous
defamatory, obscene or unlawful material contained in the ABC Content within the
Territory. Starwave shall promptly notify ABC of any such claim, and ABC shall
bear full responsibility for the defense of such claim (including any
settlements) provided however, that (i) ABC shall keep Starwave informed of and
consult with Starwave in connection with the progress of such litigation or
settlement; and (ii) ABC shall not have any right, without Starwave's written
consent, to settle any such claim if such settlement arises from or is part of
any criminal action, suit or proceeding or contains a stipulation to or
admission or acknowledgment of, any liability or wrongdoing (whether in
contract, tort or otherwise) on the part of Starwave.
8.5 CHOICE OF COUNSEL AND PROTECTION OF RIGHTS. Each party shall have the
right, in its absolute discretion, to employ attorneys of its own choice and to
institute or defend any matter, claim, action or proceeding and to take any
other appropriate steps to protect its Intellectual Property Rights and all
rights and interest in and title to its web sites, technology, content and every
element thereof and, in that connection, to settle, compromise in good faith, or
in any other manner dispose of any matter, claim, action, or proceeding and to
satisfy any judgment that may be rendered, in any manner as such party in its
sole discretion may determine.
8.6 NO OTHER REPRESENTATIONS. Except for the representations and
warranties specifically set forth in this Agreement, each party makes no other
representations and warranties of any nature whatsoever to the other parties.
8.7 NO SPECIAL DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 8.2 AND
8.4, NO PARTY SHALL UNDER ANY CIRCUMSTANCES, BE LIABLE TO ANOTHER PARTY FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR EXEMPLARY DAMAGES (INCLUDING
WITHOUT LIMITATION, LOST PROFITS, LOSS OF ANTICIPATED BUSINESS, LOSS OF DATA OR
BUSINESS LOSSES) EVEN IF SUCH DAMAGES ARE FORESEEABLE AND EVEN IF THE BREACHING
PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
9. TERM AND TERMINATION
9.1 TERM. The term of this Agreement shall commence as of the Effective
Time and shall continue for the same time period that each of ABC Partner and
Starwave Partner are partners in the Partnership (the "Term").
9.2 RENEWAL. Unless earlier terminated pursuant to Section 9.3, the
parties shall begin renewal negotiations in good faith beginning on the eight
(8) year anniversary of the date hereof. If the parties do not reach an
agreement to extend this Agreement on mutually acceptable terms within three
hundred sixty (360) days after negotiations begin, the exclusivity provisions
contained in Sections 5.1 and 5.2 shall be deemed modified, with no action
required
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of the parties, to permit either party to develop, distribute, produce, exploit
or provide services with respect to competitive Remote Access Products;
provided, that except for such modifications, this Agreement shall continue in
full force and effect until the expiration of the Term and, provided, further,
that neither party may engage in such activities with respect to News Products
then available to consumers in any manner or available prior to the expiration
of the Term. In the event the exclusivity provisions contained in Sections 5.1
and 5.2 shall be deemed modified, and either Partner develops, distributes,
produces, exploits or provides services with respect to Remote Access Products
competitive with the News Products, such Partner's Remote Access Products
competitive with the News Products shall be provided with a prominent position
on the News Products, via an above-the-fold link on the start page for the News
Product, until the end of the Term.
9.3 TERMINATION. Without prejudice to any other rights or remedies
available to the parties, ABC and Starwave (but not the Partnership) shall each
have the right, in its sole discretion, to terminate this Agreement upon written
notice to the other in the event of the occurrence of one or more of the
following:
(a) The termination of the Partnership Agreement in accordance with
its terms; or
(b) The other party makes any assignment for the benefit of creditors
or files a petition in bankruptcy (provided, that with respect to ABC Partner's
ability to terminate in the event that Starwave Partner or Infoseek files a
petition in bankruptcy, such petition shall have been approved by a decision of
the majority of Infoseek's Disinterested Directors (as defined in that certain
Governance Agreement by and between Infoseek and DEI) or is adjudged bankrupt or
is placed in the hands of a receiver; or
(c) With respect to Starwave's termination rights, ABC willfully
misuses the Starwave Marks or with respect to ABC termination rights, Starwave
willfully misuses the ABC Marks, and (i) the willful misuse occurs repeatedly
and in each case in material breach of this Agreement, and (ii) the willful
misuse occurs more than three (3) times in any one year period ("Excepted
Misuses"), and (iii) with respect to each such willful misuse, the breaching
party fails to Cure such misuse within sixty (60) days after the nonbreaching
party delivers written notice of the misuse to the other party; provided however
that (w) if the misuse consists of displaying the ABC Marks within the News
Products in a manner such that the appearance of the ABC Marks does not conform
to the requirements set forth herein, and this misuse does not have a material
adverse effect on ABC, such misuse shall be excluded from the Excepted Misuses;
and (x) if the party misusing the Marks of the other party is using its best
efforts to Cure the misuse, the Cure period shall be extended for so long as
such efforts are exercised; and (y) if a willful misuse is Cured within forty
eight (48) hours of an officer of the breaching party being notified in writing
of such misuse by the nonbreaching party, such willful misuse shall not count
toward the three (3) Excepted Misuses set forth above; and (z) if a party has
not willfully misused the other party's Marks within any six (6) month period
during the term hereof, all misuses occurring prior to the commencement of such
six (6) month period shall not count toward the three (3) Excepted Misuses set
forth above. In the event that a party misuses
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the party's Marks, (whether willfully or otherwise), the party that misused the
Marks shall implement commercially reasonable policies to address the prevention
of the occurrence of such misuse in the future.
For purposes of this Section 9.3(c), the following terms shall have the
following meanings:
(i) "Marks" shall mean ABC Marks with respect to ABC or Starwave Marks with
respect to Starwave; and
(ii) "misuse" by Starwave of an ABC Trademark shall mean a use of the ABC Marks
in a manner which materially breaches the provisions set forth in Section 6.1 or
6.2 of this Agreement, either directly by Starwave or by a third party licensed
by Starwave to use the Marks; and
(iii) "Cure" shall mean if the misuse is performed directly by a party hereto,
correcting the display or misapplication of the other party's Marks, or if the
misuse is performed by a third party under license by a party hereto,
terminating the license or purported rights granted by such party to use such
Marks and using reasonable efforts to cause the third party to cease its misuse
of the other party's Marks.
The Partners acknowledge and agree that the nature of Remote Access Products and
the Narrowband medium in general may result in a misuse of a Partner's Marks
being displayed in multiple locations and across multiple networks. For the
avoidance of doubt, if the same application of a Xxxx is displayed multiple
times or in multiple places as a direct or indirect result of the Narrowband
medium or the manner in which Remote Access Products are operated, transmitted
or otherwise made available electronically, such repeated displays shall
constitute no more than one misuse for purposes of counting Excepted Misuses
hereunder.
9.4 [INTENTIONALLY OMITTED.]
9.8 SURVIVAL. Unless otherwise specified, all obligations that accrue
prior to any expiration or termination of this Agreement shall survive such
expiration or termination. In addition, and without limiting the generality of
the preceding sentence, Sections 6, 7, 8, 9, and 10 shall survive the expiration
or termination of this Agreement for any reason.
9.9 INJUNCTIVE RELIEF. Each party acknowledges and agrees that the other
parties may be irreparably harmed by any material breach of this Agreement by
it. Therefore, each party agrees that in the event that it breaches any of its
obligations hereunder, the other parties in addition to all other remedies
available to it under this Agreement, or at law or in equity, shall be entitled
to seek all forms of injunctive relief including decrees of specific
performance, without showing or proving that it sustained any actual damages and
without posting bond.
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10. GENERAL PROVISIONS
10.1 NOTICES. All notices which either party is required or may desire to
serve upon another party shall be in writing and addressed as follows:
(a) if to ABC:
ABC News
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Disney Online
000 X. Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to DEI:
Disney Online
000 X. Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Disney Enterprises, Inc.
000 X. Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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(c) if to Starwave:
Starwave Corporation
00000 XX Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(d) if to the Partnership, c/o:
Starwave Corporation
00000 XX Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
DOL Online Investments, Inc.
000 X. Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ABC News
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any such notice may be served personally or by mail (postage prepaid),
facsimile (provided oral confirmation of receipt is immediately obtained and a
hard copy is concurrently sent by internationally commercially recognized
overnight delivery service), internationally commercially recognized overnight
delivery service (such as Federal Express or D.H.L.) or courier. Notice shall
be deemed served upon personal delivery or upon actual receipt. Any party may
change the address to which notices are to be delivered by written notice to the
other parties served as provided in this Section 10.1.
10.2 ENTIRE AGREEMENT. This Agreement, together with the Exhibits
attached hereto and hereby incorporated herein by reference, constitutes the
complete, final and exclusive
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understanding and agreement between the parties with respect to the transactions
contemplated, and supersedes any and all prior or contemporaneous oral or
written representation, understanding, agreement or communication between the
parties concerning the subject matter hereof.
10.3 AMENDMENTS. All amendments or modifications of this Agreement shall
be binding upon the parties so long as the same shall be in writing and executed
by each of the parties hereto.
10.4 WAIVER. No waiver of any provision of this Agreement or any rights
or obligations of any party hereunder shall be effective, except pursuant to a
written instrument signed by the party waiving compliance, and any such waiver
shall be effective only in the specific instance and for the specific purpose
stated in such writing.
10.5 FORCE MAJEURE. No party shall be deemed in default hereunder, nor
shall it hold the other parties responsible for, any cessation, interruption or
delay in the performance of its obligations hereunder due to causes beyond its
reasonable control including, but not limited to: earthquake, flood, fire, storm
or other natural disaster, act of God, labor controversy or threat thereof,
civil disturbance or commotion, disruption of the public markets, war or armed
conflict (whether or not officially declared) or the inability to obtain
sufficient material, supplies, labor, transportation, telecommunications, power
or other essential commodity or service required in the conduct of its business,
any change in or the adoption of any law, ordinance, rule, regulation, order,
judgment or decree (each a "Force Majeure Event") provided that the party
relying upon this Section 10.5: (a) shall have given the other parties written
notice thereof promptly and, in any event, within five (5) days of discovery
thereof and (b) shall take all steps reasonably necessary under the
circumstances to mitigate the effects of the force majeure upon which such
notice is based.
10.6 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement is intended
or shall be construed to give any person, other than the parties hereto, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
10.7 ASSIGNMENT. Neither party shall directly or indirectly assign this
Agreement to a third party without the prior written consent of the other party,
which consent shall not be unreasonably withheld.
10.8 CONSTRUCTION. This Agreement shall be fairly interpreted and
construed in accordance with its terms and without strict interpretation or
construction in favor of or against any party. Each party has had the
opportunity to consult with counsel in the negotiation of this Agreement.
10.9 CAPTIONS AND HEADINGS. The section and subsection headings and
captions appearing in this Agreement are inserted only as a matter of
convenience and shall not be given any legal effect.
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10.10 SEVERABILITY. If any restriction, covenant or provision of this
Agreement shall be adjudged by a court of competent jurisdiction to be void as
going beyond what is reasonable in all the circumstances for the protection of
the interests of the party seeking to enforce such restriction, covenant or
provision, such restriction, covenant or provision shall apply with such
modifications as may be necessary to make it valid and effective. In the event
that any provision of this Agreement should be found by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
shall not in any way be affected or impaired thereby.
10.11 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of New York. Any action arising out of or relating to this Agreement
shall be filed only in the courts of the State of California for the County of
Los Angeles, or the United States District Court for the Central District of
California. The parties hereby consent and submit to the personal jurisdiction
of such courts for the purposes of litigating any such action.
10.12 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the duly authorized representatives of each party have
executed this Agreement as of the day and year first written above.
ABC, INC. STARWAVE CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxx
------------------------- -------------------------
Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxx
Title: Vice President Title: Sr. Vice President
ABC NEWS/STARWAVE PARTNERS
By its General Partners
DOL ONLINE INVESTMENTS, INC. STARWAVE VENTURES
By: /s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------- -------------------------
Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President Title: Vice President
EXECUTED SOLELY WITH RESPECT
TO THE PROVISIONS OF
SECTIONS 3.1, 3.6, 4.6, 5.2, 6.1 AND 6.2
DISNEY ENTERPRISES, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Title: Sr. Vice President
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