EXHIBIT 10.7
WEB SITE AND CYBERCASTING AGREEMENT
THIS WEB SITE AND CYBERCASTING AGREEMENT ("Agreement") is made effective as
of February 15,1998 by and between HOST COMMUNICATIONS, INC., a Kentucky
corporation ("HCI") having an address at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and the TOTAL COLLEGE COMMUNICATIONS COMPANY, L.L.C., a Kentucky
limited liability company ("TC/3/") having an address at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, the NCAA has granted HCI the exclusive rights to promote certain
NCAA Championships using Cybercasts and a Web Site accessible over the Internet
under a License dated of even date herewith (the "License"); and
WHEREAS, TC/3/, as an independent contractor, desires to create a Web Site
for HCI in order to provide access to certain NCAA Championships through the
Internet; and
WHEREAS, TC/3/ desires to produce and broadcast certain NCAA Championships
through the use of Internet Cybercasts; and
WHEREAS, the NCAA has licensed HCI to use the NCAA's name, the letters
"NCAA", its seal, logo and the phrases "National Collegiate Championships", "The
Final Four", "Women's Final Four', "College Sports USA", "NCAAction!", "College
World Series", 'Women's College World Series", and "Stagg Bowl" registered or
pending registration before the United States Patent and Trademark Office
(hereinafter collectively referred to as the Marks"); and
WHEREAS, HCI desires to promote the NCAA Championships using Cybercasts and
a Web Site accessible over the Internet and to ▇▇▇▇▇ ▇▇/3/ a license to use the
Marks in association with such Cybercasts and Web Site; and
WHEREAS, the parties have mutually agreed upon the terms and conditions set
forth in this Agreement;
Portions of this exhibit marked by [*] have been omitted pursuant to
a request for confidential treatment.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
bound, hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms will have the ascribed
meanings:
"Contract Year" means February 15, 1998 through June 30, 1998 for the first
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Contract Year and thereafter each twelve (12) month period from July 1 through
June 30 during the term of this Agreement.
"Cybercasts" means a transmission resulting in the representation,
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visualization, and/or exhibition of NCAA Championships or Special Events on
computers, Set-Top Boxes, Video Game Entertainment Equipment utilizing the
Internet or Intercasting technologies as the transmission medium, and including
without limitation, all improvements now known or hereafter developed, without
limitation. Notwithstanding the foregoing, the term "Cybercasts" shall not
include any distribution of radio broadcasts and/or video feeds over the
Internet.
"Domain Name" means a name associated with a specific registered address
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for a computer acting as an information repository on the Internet (e.g.
"▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇").
"Internet" means a global information network consisting of interconnected,
but independent, computers including, but not limited to, the World Wide Web, by
any name now known or hereafter developed, without limitation.
"Marketing Programs" shall have the meaning set forth in Section 5.1.
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"Marketing Revenues" shall have the meaning set forth in Section 7.2.
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"NCAA Championship(s)" means any tournament organized and/or sanctioned by
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the NCAA to recognize the champion of any given NCAA sport.
"Set-Top Box(es)" means a computer system connected as is to a television
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and/or other monitor.
"Special Event(s)" means any nongame event(s) involving NCAA Championships.
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"Sports Web Site" means the Web Site developed by TC/3/ with the
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assistance, and at the direction of, HCI and the NCAA that contains information
related to NCAA Championships.
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"Video Game Entertainment Equipment" means a video game system that is
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connected to a television or monitor, or is self-contained and which would
permit reception of a Cybercast or access to the Web Site.
"Web Server" means a computer system executing software that makes the
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Sports Web Site available on the Internet.
"Web Site(s)" means document(s) that consist of text, graphics, sound
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and/or animation clips and that contain links to other documents either self-
contained or located in places elsewhere on the Internet.
2. TERM.
The term of this Agreement shall commence effective as of February 15, 1998
and terminate on June 30, 2001. Should HCI extend its License with the NCAA,
the parties agree to exclusively negotiate for a renewal of the term of this
Agreement based on the terms and conditions of HCI's License and any other
mutually agreeable terms and conditions.
3. GRANT OF RIGHTS.
3.1 HCI hereby grants to TC/3/ an exclusive worldwide sublicense to use
the NCAA Marks to create and host the NCAA's official Sports Web Site in English
on TC/3/'S Sports Web Server or other Web Server designated by TC/3/ for all
NCAA Championships. In connection herewith, TC/3/ agrees that such Sports Web
Site will include coverage of the following NCAA Championships during the first
Contract Year: the Division I Men's Basketball Championship, the Division I
Women's Basketball Championship, the Division I Baseball (The College World
Series) and fifty-three (53) other Championship final games or events (excluding
the sites of any regionals or preceding rounds) as selected by the NCAA by
February 15, 1998. During the second Contract Year, such Sports Web Site will
include coverage of the following NCAA Championships: the Division I Men's
Basketball Championship, the Division I Women's Basketball Championship, the
Division I Baseball (The College World Series), and a mutually agreeable number
of additional Championship final games or events (excluding the sites of any
regionals or preceding rounds). All NCAA Championships will be included on the
Sports Web Site on or before June 1, 1999. TC/3/'s coverage of the NCAA
Championships identified herein on the Sports Web Site will, at a minimum,
include the following: one (1) page generally relating to and previewing the
Championship, one (1) page relating to the Championship venue and ticketing
information and three (3) pages relating to the Championship results. During the
term of this Agreement, HCI shall not permit any party other than TC/3/ to
create or host the official NCAA Championship Web Site. Notwithstanding the
foregoing, TC/3/ acknowledges that HCI and/or the NCAA may authorize schools
participating in a Championship, host institutions, local organizing committees
venues and/or host cities to include Championship specific information on their
respective Web Sites provided that the same does not constitute an official
Championship Web Site. In addition, TC/3/ acknowledges that the license granted
herein
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shall not prevent the NCAA from authorizing the use of the NCAA Marks to create
and host an official foreign language NCAA Web Site and that all such rights are
expressly excluded from this Agreement; provided, however, TC/3/ shall have an
exclusive first right of negotiation for any foreign language official NCAA Web
Site of a period of fifteen (15) days following the NCAA's written notice of its
intent to secure any such foreign language Web Site of an NCAA Championship.
3.2 HCI hereby grants to TC/3/ a worldwide license to use the NCAA Marks
to create, produce, syndicate and broadcast via Cybercasts, in English, on
TC/3/'S Sports Web Server or other Web Server designated by TC/3/, all pre-game,
play-by-play and post-game commentary for all NCAA Championships. During the
first Contract Year, TC/3/ agrees to Cybercast each the following: (i) the
Division I Men's Basketball Championship, (ii) the Division I Women's Basketball
Championship, and (iii) the Division I Baseball Championship (The College World
Series). In each remaining Contract Year, TC/3/ agrees to Cybercast the
following: (i) the Division I Men's Basketball Championship, (ii) the Division I
Women's Basketball Championship, (iii) the Division I Baseball Championship (The
College World Series), and at least five additional Championships as mutually
determined by HCI and the NCAA on or before July 1. During the term of this
Agreement, HCI shall not permit any party other than TC/3/ to create, produce,
syndicate or broadcast via Cybercast any such NCAA Championships without TC/3/'s
consent, except participating schools in a Championship or other sports specific
organizations shall be permitted to do a Cybercast if TC/3/ is not doing one for
that Championship. TC/3/ acknowledge that the license granted herein shall not
prevent the NCAA or HCI from authorizing the use of the NCAA Marks to create,
produce, syndicate and broadcast via Cybercasts any NCAA Championships in a
foreign language; provided, however, TC/3/ shall have an exclusive first right
of negotiation for any foreign language Cybercast of an NCAA Championship for a
period of fifteen (15) days following the NCAA's written notice of its intent to
secure any such foreign language Cybercast of an NCAA Championship.
3.3 In accordance with the foregoing, TC/3/ shall be responsible for:
(a) setting up the Domain Name for the NCAA Championships, the
ownership of which shall remain and vest in the NCAA's wholly
owned subsidiary, NCAA Marketing, Inc.;
(b) creating the initial page layout, content, content layout, and
graphic design for the Sports Web Site, subject to the prior
approval of HCI and the NCAA, such approval not to be
unreasonably withheld or delayed;
(c) online promotion of the Sports Web Site, subject to the prior
approval of HCI and the NCAA, such approval not to be
unreasonably withheld or delayed;
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(d) maintenance and support of the Web Server used for the Sports Web
Site, including keeping backups of data stored on the Web Server,
checking for errors in the accessibility of the Sports Web Site,
and monitoring connectivity of the Web Server to the Internet;
(e) the monthly delivery of statistical data regarding the access
logs of those visiting the Sports Web Site, including the number
of page views to the Sports Web Site per day and a summary of
Domain Names registered by the logs;
(f) forwarding to the NCAA's prearranged e-mail account any comments
or other communications from the Sports Web Site;
(g) providing tools for NCAA personnel to update the Web Site via the
Internet.
3.4 TC/3/ reserves the right to perform routine maintenance up to once a
week, which may require taking the Web Server off the Internet for a reasonable
period of time. TC/3/ shall make a good faith effort, without any additional
expenditure of funds, to minimize the impact of such maintenance and to perform
the work during off-peak hours and to perform maintenance on a secondary server
and then move updated server to a primary server.
3.5 TC/3/ agrees that "NCAA Online" shall be acknowledged in the title
banner as the presenter on the Web Site.
4. HCI OBLIGATIONS.
4.1 HCI shall (or shall cause the NCAA to) provide all NCAA documents,
photographs, films, statistics and other media and/or information in formats
agreed upon by the parties, to TC/3/ as it may reasonably require for its
performance of its duties hereunder. HCI further agrees to (and will request
that the NCAA) review and approve converted Web Site and Cybercast components in
a timely manner. In connection herewith, HCI shall be solely responsible for all
editing, creation and/or maintenance of all such NCAA documents and/or
information at rates to be mutually agreed upon by the parties.
4.2 HCI hereby grants TC/3/, as an independent contractor, a worldwide
exclusive license to use the NCAA Marks solely for the term and purposes of this
Agreement for its creation, maintenance, and distribution of the Web Site and
Cybercasts. TC/3/ agrees that it will submit copies of all materials and
proposed uses of the NCAA Marks to HCI for its prior approval and the prior
approval of the NCAA. HCI and/or the NCAA shall instruct TC/3/ in writing within
ten (10) business days following receipt, as to whether any such materials
and/or proposed use of the NCAA Marks areapproved, such approval not to be
unreasonably withheld or delayed. If no approval
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or disapproval is provided to TC/3/ within the time allotted herein, then such
materials and/or proposed use of NCAA Marks shall be deemed approved.
4.3 TC/3/ will have the right, to the extent that HCI has the right from
the NCAA, to make all appropriate references to the NCAA and the universities
and colleges of the teams, the sites, the games and participants in and others
identified with the NCAA Championships including, without limitation,
photographs, video footage, audio, images, statistics and other elements as may
be required for TC/3/ to perform its obligations hereunder.
4.4 HCI represents and warrants that it has the right to enter into this
Agreement and to ▇▇▇▇▇ ▇▇/3/ the rights granted herein, including the exclusive
rights to Cybercast events taking place at the sites of NCAA Championships
before, during and after such Championships and during intermissions.
5. ON-LINE MARKETING PROGRAMS.
5.1 HCI hereby reserves the rights to market, sell and include
advertising and/or other promotions, including, without limitation, sales of
licensed merchandise (collectively referred to as the "Marketing Programs") of
third persons and/or entities, either by directly incorporating the content of
such advertising or promotions as part of the Sports Web Site and Cybercasts or
by providing links to such advertising or promotions. In connection herewith,
TC/3/ shall also have the right to market, sell and include advertising of third
persons and/or entities, either by directly incorporating the content of such
advertising as part of the Sports Web Site and Cybercasts or by providing links
to such advertising. For the purposes of this Agreement, such Marketing Programs
shall include the NCAA Corporate Partner Marketing Program Packages described in
paragraph 5.2 below.
5.2 Notwithstanding the foregoing, the parties agree to develop each
Contract Year an NCAA Corporate Partner Marketing Program Package (herein
referred to as the "Package(s)") to be offered by HCI to any NCAA Corporate
Partners and/or other NCAA sponsors identified by HCI during the term of this
Agreement (herein collectively referred to as "NCAA Corporate Partner(s)"). Such
Packages will include all available Marketing Programs on the Sports Web Site
and be priced at a mutually agreed upon discount for the benefit of the NCAA
Corporate Partners. NCAA Corporate Partners shall have an exclusive first right
to purchase any such Packages for a period of time mutually agreed upon by the
parties prior to any solicitation by TC/3/ for sales of Marketing Programs
and/or advertising under this Agreement to any entity which HCI reasonably
determines competes with the respective NCAA Corporate Partners within their
exclusive product and/or service categories. Should any NCAA Corporate Partner
decline a Package offered by HCI within the time period agreed upon by the
parties, TC/3/ shall be free to negotiate and/or secure an agreement with a
competitor to the respective NCAA Corporate Partner which declines a proposed
Package for the purchase of a Marketing Program or advertising on the Sports Web
Sites.
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5.3 All sales of advertising by TC/3/ hereunder shall be subject to the
prior approval of HCI and the NCAA. TC/3/ acknowledges and agrees that the NCAA
has reserved the right to prohibit sales of Marketing Programs and/or
advertising to any entity which the NCAA, in its sole discretion, believes would
or might bring discredit to the purposes or principles of the NCAA as set forth
in its Manual. All marketing and sales of advertising by TC/3/ shall be done in
such a manner as to preserve the integrity, character and dignity of the NCAA
and to advance its purpose of fostering higher education. In order to assure
compliance with the NCAA's standards and policies, TC/3/ shall provide in
advance to HCI (and the NCAA if requested) samples of all literature and
promotional material that TC/3/ intends to use in its marketing efforts
hereunder, and none shall be used without the advance written approval of HCI
(or the NCAA), such approval not to be unreasonably withheld or delayed.
Notwithstanding any contrary term contained herein, no license is granted herein
to TC/3/ to license any entity with the rights to use or feature the NCAA Marks
and/or to conduct any related promotion in any manner whatsoever.
5.4 TC/3/, at no cost or expense to HCI or any Marketing Program
customers, shall place, feature, update and maintain all such Marketing Programs
secured by HCI on the Sports Web Site and/or within Cybercasts, as the case may
be, for the full term of any agreement between HCI and the Marketing Program
customer. In addition, TC/3/ shall prominently feature the NCAA's official
Championship event merchandiser by use of a graphic display throughout the Web
Site at no cost to such merchandiser and will provide links to such
merchandiser's web site. HCI agrees to regularly consult with TC/3/ with respect
to: (i) any technical specifications required to fulfill any commitments to a
Marketing Program customer relative to the Sports Web Site and/or the Cybercasts
prior to finalizing any contracts with the customer to insure TC/3/'s ability to
fulfill such commitments; and (ii) HCI's Marketing Program solicitation and
sales efforts.
5.5 The parties will mutually agree upon all fees and rates to be charged
to third parties for all Marketing Programs and/or advertising, including, but
not limited to the discount offered to NCAA Corporate Partners as a part of the
Packages.
5.6 As approved by the NCAA, TC/3/ may place its logo (no larger than 1"
x 0.75") on the bottom of every page contained within the Sports Web Site and as
part of all Cybercasts. TC/3/ further agrees to display the NCAA Online logo
hyperlink and that of the NCAA's official Championship merchandiser on the
bottom of every page contained within the Sports Web Site and as part of all
Cybercasts.
5.7 Each of HCI and TC/3/ shall use its best efforts to market the Sports
Web Site and Cybercasts to potential customers. Except as permitted hereunder in
accordance with paragraph 5.1, TC/3/ shall not authorize any entity which
competes with any NCAA Corporate Partner, or other exclusive Marketing Program
customers to link to the NCAA Web Site in a manner which directly or indirectly
implies a sponsorship or other association with the NCAA or the NCAA Web Site.
It is understood that any merchandise sold through the Sports Web Site shall be
licensed by the NCAA or its
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authorized licensees and no other merchandise shall be permitted to be
advertised without HCI's prior approval.
6. ACCESS.
For the purposes of this Agreement, HCI shall (or will cause the NCAA to)
▇▇▇▇▇ ▇▇/3/ reasonable access to (or otherwise provide):
(a) NCAA photograph, video, audio, statistical, and print libraries;
(b) players, coaches, and others participating in the NCAA Championships;
(c) NCAA press conferences;
(d) NCAA special events associated with the Championships (including
necessary media and parking passes);
(e) all facilities (including a minimum of [*] rooms in the NCAA
Championship or media hotel or the NCAA "overflow" hotel should space
be unavailable in the NCAA Championship or media hotel);
(f) the Championship events (including, at no cost or expense, a minimum
of [*] media passes);
(g) the opportunity to purchase, at face value, at least [*] tickets for
admission to all NCAA Championships; provided, however, any
promotional use of such tickets must be approved in advance by the
NCAA;
(h) public service announcements of at least five (5) seconds in length
featuring the URL address for each Championship Cybercast by TC/3/
within the telecasts and broadcasts of such Championships; and
Portions of this exhibit marked by [*] have been omitted pursuant to a
request for confidential treatment.
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(i) HCI shall cause the NCAA to use its best efforts to provide signage
featuring the URL address for each Championship Cybercast by TC/3/
including, (1) a maximum of two (2) on-field (or courtside) signs, no
larger than those permitted the network carrying the television
broadcast of the event, (at least three (3) feet by six (6) feet)
within plain view of the field of play at each such Championship.
7. PAYMENTS.
7.1 HCl shall invoice and attempt collection of all Marketing Revenues
(as herein defined) due from Marketing Program and/or advertising customers
secured by HCI under this Agreement, including, but not limited to, all NCAA
Corporate Partners purchasing NCAA Corporate Partner Marketing Program Packages
(herein collectively referred to as "Customers"). HCI shall be entitled to
retain a Commission (herein so called) of [*] percent ([*]%) of all such
Marketing Revenues collected by HCl from Customers which it secures hereunder
(including all NCAA Corporate Partners purchasing NCAA Corporate Partner
Marketing Program Packages) and will remit to TC/3/ the balance of Net Marketing
Revenues collected which in the aggregate equal the lesser of $[*] or the actual
Costs and Expenses associated with the creation, production, distribution and
maintenance of the Sports Web Site and Cybercasts. The balance of any Net
Marketing Revenues in excess of the lesser of $[*] or the actual Costs and
Expenses of the Sports Web Site and the Cybercasts shall be paid by HCI as
follows: (i) [*] percent ([*]%) of all such Net Marketing Revenues shall
retained by HCI for all necessary settlements with the NCAA and (ii) [*] percent
([*]%) of all such Net Marketing Revenues shall be paid to TC/3/. Within thirty
(30) days from HCl's date of collection, HCI agrees to pay TC/3/ all amounts due
hereunder; provided, however, HCI may reserve such amounts as may be necessary
to make HCl's required settlement with the NCAA; provided, however, such amounts
will be deposited by HCI in an interest bearing account, with any accrued
interest thereon to be paid to TC/3/ within ten (10) days from the date of HCl's
settlement with the NCAA. HCI will use its commercially reasonable efforts to
require Customers to pay at least fifty percent (50%) upon execution of the
agreements with such Customers with the remaining amounts due within six (6)
months following the date of execution.
7.2 As used herein, (i) "Marketing Revenues" shall mean all amounts
collected by HCI from Customers secured by either TC/3/ or HCI less any
unaffiliated agency fees; and (ii) "Net Marketing Revenues" shall mean all
Marketing Revenues collected by HCI from Customers less its Commission. As used
herein, "Costs and Expenses" shall
Portions of this exhibit marked by [*] have been omitted pursuant to
a request for confidential treatment.
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mean: (i) all advertising, acknowledgment and promotion expenses (including, but
not limited to, newspaper, Arbitron and other research for sponsor and visitor
interest); (ii) all costs associated with marketing and sales of the Marketing
Programs, including, without limitation, all fulfillment costs and/or other
expenses associated with sales of Marketing Programs including a commission of
[*] percent ([*]%); (iii) any amounts required to be withheld for applicable
taxes or amounts required to be refunded customers; (v) all agency commissions;
and (vi) all operational and production expenses associated with the creation,
maintenance, hosting, and broadcasting of the Web Site and all Cybercasts as the
same directly relates to HCl's performance of this Agreement. Notwithstanding
the foregoing, TC/3/ agrees that all general administrative and overhead
expenses of TC/3/ shall be its sole expense. Neither HCI nor the NCAA shall bear
any legal or financial responsibility for said Costs and Expenses.
7.3 Each party will be solely responsible for the payment of its
employees' compensation, including employment taxes, worker's compensation, and
any similar taxes associated with employment of its employees. No party shall be
liable for the debts, accounts, obligations or other liabilities of the other
party, including without limitation, the other party's obligation to withhold
payroll and income taxes.
7.4 Each party shall keep complete and accurate records pertaining to its
activities hereunder; and the books, records and accounts of the parties
pertaining to its business relating to this Agreement may be inspected and
audited by the other party, the NCAA or agents of such party or the NCAA at
anytime during normal business hours upon giving reasonable notice to party from
whom the inspection or audit is sought.
7.5 TC/3/ shall make quarterly financial reports to HCl on or before
October 1, January 1 and July 1 that shall separately list information about its
revenues and expenses pursuant to this Agreement and shall be certified by
TC/3/'s Chief Executive Officer or his designated representative. The July I
financial report shall include a year-end summary of all such revenues and
expenses. All such reports received by HCl and the information contained therein
shall be used only for HCl's internal purposes and its requirements to the NCAA
and shall not be provided to third parties other than the NCAA except as
required by law or with the consent of TC/3/.
8. INDEMNIFICATION.
8.1 By TC/3/ TC/3/ agrees to indemnify fully and save harmless HCI, the
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NCAA and their respective officers, agents, employees and each of the NCAA
member institutions, of and from any and all claims, demands and causes of
actions, including
Portions of this exhibit marked by [*] have been omitted pursuant to a
request for confidential treatment.
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legal costs and costs of attorneys' fees, arising out of any breach by TC/3/ of
any provision of this Agreement or any acts or omissions of TV or any of its
officers, agents or employees pursuant to this Agreement.
8.2 By HCI HCI agrees to indemnify fully and save harmless TC/3/, its
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officers, agents, and employees, of and from any and all claims, demands and
causes of actions, including legal costs and costs of attorneys' fees, arising
out of any breach by TC/3/ of any provision of this Agreement or any acts or
omissions of TC/3/ or any of its officers, agents or employees pursuant to this
Agreement; or any claims of trademark infringement brought by third parties from
any use of the Marks by TC/3/ approved under the terms of this Agreement.
9. INSURANCE.
9.1 Throughout the term of this Agreement, TC/3/ agrees to maintain,
through a carrier having a A.M. Best rating A (excellent), VII or better,
comprehensive general liability insurance in the amount of Five Million Dollars
($5,000,000) per occurrence for bodily injury, property damage and contractual
liability. Said insurance will protect the named insured against any claims,
demands, or causes of action or damages including costs and attorneys' fees
arising out of that party's action under this Agreement. Said insurance will
name HCI and the NCAA as additional insureds and will not be cancelable until at
least thirty (30) days after written notice of cancellation is given by the
insurer to HCI and the NCAA. TC/3/ shall furnish HCI (and/or the NCAA) a
certificate of such insurance demonstrating that the above-stated coverage is in
effect.
9.2 Throughout the term of this Agreement, HCI agrees to maintain,
through a carrier having a A.M. Best rating A (excellent), V11 or better,
comprehensive general liability insurance in the amount of Five Million Dollars
($5,000,000) per occurrence for bodily injury, property damage and contractual
liability. Said insurance will protect the named insured against any claims,
demands, or causes of action or damages including costs and attorneys' fees
arising out of that party's action under this Agreement. Said insurance will
name TC/3/ as an additional insured and will not be cancelable until at least
thirty (30) days after written notice of cancellation is given by the insurer to
TC/3/. HCI shall furnish TC/3/ a certificate of such insurance demonstrating
that the above-stated coverage is in effect.
10. TERMINATION.
10.1 Upon material breach of any obligation by the other party, each
party shall have the right to terminate this Agreement by written notice to the
other if such breach remains uncured for a period of thirty (30) days after
written notice of such breach is sent to the other party.
10.2 If either party files a bankruptcy petition, becomes the subject of
an involuntary bankruptcy petition, makes a general assignment for the benefit
of creditors, has a receiver appointed for its assets, or ceases to conduct
business, it shall be
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considered a material default of this Agreement. Upon the happening of any of
these events, the defaulting party shall immediately send notice of default to
the other party.
10.3 In addition to its other rights, HCI reserves the right to terminate
this Agreement, without penalty, upon any termination or expiration of its
separate agreement with the NCAA relative to the Sports Web Site and Cybercasts
which are the subject of this Agreement.
11. RIGHTS OF THE PARTIES UPON TERMINATION.
11.1 Sections 7 through 13 of this Agreement shall continue to bind the
parties after termination of the Agreement as provided herein.
11.2 In the event of a permitted termination of this Agreement under
Section 10 upon a material breach by HCI, all amounts owed or accrued for the
work performed under this Agreement shall become immediately due and payable and
all rights and licenses granted to TC/3/ by HCI under this Agreement for such
work performed shall continue and survive royalty-free and fully paid through
the effective date of termination of this Agreement.
11.3 Upon any event of termination or expiration of this Agreement,
ownership of the Sports Web Site shall reside in HCI and/or the NCAA, as
applicable in accordance with HCI's License with the NCAA.
12. ASSIGNMENT.
Neither party may assign or subcontract its rights or obligations under
this Agreement, either in whole or in part, without the prior written consent of
the other party, which shall not be unreasonably withheld, and any attempt to do
so shall be void and of no effect. An assignee of either party authorized under
this Agreement shall be bound by the terms of this Agreement and shall have all
of the rights and obligations of the assigning party set forth in this
Agreement. If any assignee shall fail to agree to be bound by all of the terms
and obligations of this Agreement, then such assignment shall be deemed null and
void and of no force or effect. Notwithstanding the foregoing, any consent to an
assignment may be conditioned upon an approval of the assignment by the NCAA.
13. MEDIATION AND ARBITRATION.
The parties agrees that any disputes arising hereunder that the parties
cannot resolve between themselves shall be addressed in the following manner:
13.1 First, the parties shall engage the services of a mediator through
the American Arbitration Association, which mediator must have a background or
training in computer law, computer software technology or Internet related
issues. The parties shall share the costs of the mediation equally. Unless the
parties agree otherwise, the
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mediation shall be in the city where the headquarters of the NCAA is located, at
a time reasonably agreeable to both parties. Both parties may be represented at
such mediation by attorneys, and each side shall have present a member of senior
management with full authority to bind said party to any resolution that may be
mediated.
13.2 Second, in the event mediation fails, any controversy or claim
arising out of or relating to this Agreement, or the breach thereof, shall be
settled by arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association, and judgement upon the award rendered by
the arbitrators may be entered in any court having jurisdiction thereof. Unless
the parties otherwise agree, the arbitration hearing shall be held in the city
where the headquarters of the NCAA is located. The parties, their
representatives, other participants and the mediator and/or arbitrator shall
hold the existence, content and result of any mediation or arbitration in
confidence unless otherwise prohibited by law.
14. MISCELLANEOUS.
14.1 This Agreement together with all exhibits and other related
documents that are incorporated herein by reference, embodies the entire
Agreement and except as otherwise contemplated herein and/or other agreements
between the parties, supersedes all prior agreements, written and oral, relating
to the subject matter hereof. This Agreement is in addition to that certain
Services Agreement between the parties and that certain Marketing Agreement
between the parties. In the event of a conflict between the provisions of the
main body of the Agreement and any attached exhibits, the Agreement shall take
precedence. Notwithstanding any contrary term herein, this Agreement shall be
subject to all terms and conditions of HCI's License.
14.2 Modifications and amendments to this Agreement, including any
exhibit or appendix hereto, shall be enforceable only if they are in writing and
are signed by authorized representatives of both parties.
14.3 No term or provision of this Agreement shall be deemed waived and no
breach excused unless such waiver or consent is in writing and signed by the
party claimed to have waived or consented.
14.4 Nothing contained in this Agreement shall be construed so as to
constitute either party as a partner or joint venturer or agent of the other
party, or to require either party to share profits, gains or ownership interest
in or from any property or activities.
14.5 The parties acknowledge that TC/3/ will perform its obligations
hereunder as an independent contractor. Subject to the terms hereof, the manner
and method of performing such obligations will be under TC/3/'s sole control and
discretion; HCI's sole interest is in the result of such services. It is also
expressly understood that TC/3/'s employees and agents are not HCI's employees
or agents, and have no authority to bind HCI by contract or otherwise.
13
14.6 All notices, claims, certificates, requests, demands and other
communications hereunder shall be in writing and will be deemed to have been
given if delivered by hand, prepaid telegram or mailed (registered or certified
mail, postage prepaid, return receipt requested, or any means of express mail
with confirmed delivery) as follows:
If to HCI, to:
▇. ▇▇▇▇▇ Host
Host Communications, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With copies to:
▇▇▇▇ ▇. ▇▇▇▇
Host Communications, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
If to TC/3/, to:
▇▇▇▇ ▇▇▇▇▇▇▇, CEO
TC/3/
133 Fayetteville Street
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
14.7 If any action at law or in equity is necessary to enforce the terms
of this Agreement, the prevailing party shall be entitled to reasonable attorney
fees, costs and expenses, in addition to any other relief to which it may be
entitled.
14.8 This Agreement will be governed by the laws of the Commonwealth of
Kentucky.
14.9 Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
14.10 Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
14.11 Without limitation upon other provisions of this Agreement, TC/3/
agrees that: (i) it will not attack the title of the NCAA in and to the NCAA
Marks and/or the
14
Sports Web Site and Cybercasts, nor will it attack the validity of the license
granted hereunder; (ii) it will not knowingly harm, misuse or bring it to
disrepute the NCAA Marks nor the Sports Web Site nor Cybercasts; and (iii) it
will not create any expenses chargeable to HCI without the prior written
approval of HCI.
14.12 Upon any request by the NCAA, HCI may provide a copy of this
Agreement to such person.
14.13 This Agreement shall not be binding upon HCI unless and until it is
duly executed by its Chief Executive Officer or his designee.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed effective as of the date first written above.
HOST COMMUNICATIONS, INC.
By: ___________________________
Title: ___________________________
Date: ___________________________
TOTAL COLLEGE COMMUNICATIONS COMPANY, L.L.C.
By: __________________________
Title: __________________________
Date: __________________________
15
AMENDMENT
---------
THIS AMENDMENT (the "Amendment") is made and entered into effective as of
February 1, 1999 between HOST COMMUNICATIONS, INC. ("HCI") and TOTAL SPORTS,
INC. (f/k/a TOTAL COLLEGE COMMUNICATIONS COMPANY, L.L.C. and herein referred to
as "Total").
W I T N E S S E T H:
WHEREAS, the NCAA has granted HCI the exclusive rights to construct,
maintain and service an NCAA Merchandise Web Site (herein so called) to be
featured and included in ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇ under HCI's License with the NCAA
dated as of February 1, 1998, as amended (the "License"); and
WHEREAS, HCI and Total entered into that certain Web Site and Cybercasting
Agreement dated effective as of February 15, 1998, a copy of which is attached
hereto as Exhibit A and is incorporated herein by this reference (herein the
"Agreement"); and
WHEREAS, HCI and Total desire to amend the Agreement to permit Total to
create a Merchandise Web Site in order to market and sell officially licensed
NCAA products through the Internet; and
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged the parties, intending to be bound,
hereby agree as follows:
1. Paragraph 3 of the Agreement is hereby amended by the addition a new
subparagraph 3.6 as follows:
3.6 Subject to and in accordance with HCI's License, HCI
hereby grants to Total an exclusive world-wide license to
use the NCAA Marks to create and host the official NCAA
Merchandise Web Site in English on Total's Sports Web Server
or other Web Server designated by Total and approved by HCI
and the NCAA. Such Merchandise Web Site will: (i) only be
accessible by the general public through ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇
or such other NCAA Sports Web Site hosted by Total pursuant
to the Agreement and approved by the NCAA; (ii) conform with
the quality and appearance of the Merchandise Web Site as
the same currently exists as of the commencement date of the
1999 Men's and Women's Division I Basketball Tournament; and
(iii) be (and all related advertising and promotion thereof
will be subject to the approval of HCI and the NCAA in
accordance with the Agreement. Total agrees that such
Merchandise Web Site will only feature and offer merchandise
items which are officially licensed products of the NCAA
secured through NCAA merchandise licensees. Total will be
responsible for all costs and expenses to construct,
maintain and service the Merchandise Web Site, including,
without limitation all costs associated with the purchase,
sales and distribution of licensed merchandise offered to
the public through the Merchandise Web Site. During the term
of this Agreement, HCI shall not grant any party other than
Total with the right to create or host any "official" NCAA
merchandise web site in association with or using the NCAA
Marks. In the event of any termination or expiration of the
Agreement, Total shall promptly remove the Merchandise Web
Site from its Web Server. Neither HCI nor the NCAA shall
have any liability whatsoever from, and Total shall
indemnify and defend HCI and the NCAA from, any and all
claims arising from sales of licensed merchandise by Total
through the Merchandise Web Site, including, but not limited
to, claims of product liability.
2. Paragraph 4 of the Agreement is hereby amended by the addition of a
new sub-paragraph 4.5 as follows:
4.5 HCI agrees to cause the NCAA to include
▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇, as a banner, during [*] public service
announcements (PSAs) to be aired during telecasts of the
1999 and 2000 Men's and Women's Division I Basketball
Tournament telecasts by CBS.
3. Paragraph 5 of the Agreement is hereby amended by the addition of a
new sub-paragraph 5.8 as follows:
5.8 In connection with the Merchandise Web Site, Total
agrees to pay to HCI a royalty of [*] percent ([*]%) of all
revenues collected by Total from items sold through the
Merchandise Web Site. Such royalties shall be based upon
Portions of this exhibit marked by [*] have been omitted pursuant to
a request for confidential treatment.
retail prices for items sold through the Merchandise Web
Site. In addition to other payment requirements under the
Agreement, Total agrees to quarterly pay HCI all royalty
payments due from merchandise sold through the Merchandise
Web Site commencing on April 30, 1999 and continuing on
October 1, January 1 and July 1 of each calendar quarter
thereafter during the term of the Agreement.
Total agrees to maintain accurate and complete sales records
relating to the Merchandise Web Site in accordance with the
terms and condition of the Agreement, including,
subparagraphs 7.3 and 7.4.
4. All terms defined in the Agreement shall have the same meanings in
this Amendment. In all other respects the parties ratify and agree to be bound
by the remaining unchanged provisions of the Agreement. In the event of any
inconsistency between the Agreement and the terms relating to the Merchandise
Web Site under this Amendment, the terms of this Amendment shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed effective as of the date first written above.
HOST COMMUNICATIONS, INC.
By: ________________________
Its: ________________________
Date: ________________________
TOTAL SPORTS, INC.
By: ________________________
Its: ________________________
Date: ________________________
