CONTENT LICENSE AGREEMENT DRAFT
This Agreement (the "Agreement") is entered into as of this 24th day of August
2004 (the "Effective Date"), by and between CSC Holdings, Inc. ("CABLEVISION"),
located at 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000-0000 and ZONE4PLAY Inc.
("PROVIDER"), located at XXXXX.
WHEREAS CABLEVISION owns, maintains and or operates, through itself or through
its parent, subsidiary, or affiliate companies, a digital cable television
service known as Interactive Optimum (iO) that includes individual and combined
offerings of video, audio and interactive television services and other digital
products or services as are now or may be made available over digital set-top
boxes.
WHEREAS PROVIDER is the creator, developer and licensee of certain interactive
game content, as described more particularly in Exhibit A, attached hereto and
incorporated hereby;
WHEREAS CABLEVISION wishes to make PROVIDER'S Content available to CABLEVISION
subscribers, customers and/or users of the Service;
NOW THEREFORE in consideration of the foregoing and the mutual promises and
covenants set forth in this Agreement, the parties, each intending to be legally
bound, hereby agree as follows:
1. TERM
1.1 This Agreement shall commence as of the Effective Date and shall
extend for a period of three (3) years (the "Initial Term"). Upon expiration of
the Initial Term, this Agreement shall automatically renew for additional one
(1) year terms (each a "Renewal Term") unless either party elects to terminate
the Agreement by providing written notice to the other at least sixty (60) days
prior to the expiration of the then-current Initial or Renewal Term. The Initial
Term and any Renewal Terms shall be referred to as the "Term."
2. DEFINITIONS
2.1 In this Agreement the following terms shall have the following
meanings:
"CABLEVISION MARKS" shall mean, collectively, the trademarks, trade names,
brands, logos, service marks or other identifying marks of CABLEVISION and the
Service and the goodwill associated therewith, other than PROVIDER Marks and the
Licensor Marks.
"CABLEVISION PROPRIETARY MATERIALS" shall mean all text, images, illustrations,
URLS, audio and multimedia files, as the same may be updated from time to time,
included as part of the Service, as well as any technology, software or know-how
used or employed in connection with the Service, developed by or for CABLEVISION
in connection with the Service and/or used in connection with integrating the
Content to the Service or other channel of access, other than the IPR of
PROVIDER, the PROVIDER Marks, the Content, the IPR of PROVIDER'S third-party
game licensors and the Licensor Marks.
"CONTENT" shall mean those interactive games and all know-how, deliverables,
text, images, illustrations, audio and multimedia files, the Look and Feel, all
technology, software (including, without limitation, the Format and Use
Software) and documentation related to or incorporated therein, as may be
updated from time to time, that are configured for certain digital cable set-top
boxes and supplied to CABLEVISION by PROVIDER pursuant to the terms of this
Agreement and as are more particularly described in Exhibit A.
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"INTELLECTUAL PROPERTY RIGHT" or "IPR" means any patent, registered design,
copyright, design right, topography right, trademark, service xxxx, application
to register any such rights, rights in the nature of any of the aforementioned
rights, trade secrets, rights in unpatented know-how, rights of privacy or
publicity and any other intellectual or industrial property rights of any kind
whatsoever in any part of the world.
"LICENSOR MARKS" shall mean, collectively, the trademarks, trade names, brands,
logos, service marks or other identifying marks of PROVIDER'S third-party game
licensors and the goodwill associated therewith.
"LOOK AND FEEL" shall mean the visual manifestation of the Content including,
without limitation, (i) the particular and distinctive elements of graphics,
design, colors, organization, presentation, typographical look and layout,
navigation, trade dress and stylistic convention of the Content, (ii) the
features and subject matter appearing on the Content, and (iii) the editorial
style and content of the Content.
"PROVIDER MARKS" shall mean, collectively, the trademarks, trade names, brands,
logos, service marks or other identifying marks of PROVIDER and the Content and
the goodwill associated therewith, other than the Licensor Marks.
"SERVICE" shall mean the digital cable television service, Interactive Optimum
(iO) as provided by CABLEVISION that includes individual and combined offerings
of video, audio and interactive television services and other digital products
or services to Users as are now or may be made available over the digital
set-top box, and specifically excluding any such offerings delivered via
satellite.
"TERRITORY" means the locations within the United States where the Service is
available to Users.
"USER(S)" shall mean any individual who is authorized to receive the Service.
3. PROVIDER DELIVERABLES
3.1 PROVIDER will provide the Content for CABLEVISION's Service according
to the schedules and descriptions set forth in Exhibits A D and E. PROVIDER has
the right to make changes to the Content, even if not requested by CABLEVISION,
subject to CABLEVISION approval not to be unreasonably withheld.
3.2 if the PROVIDER shall design a Server System and make it available to
CABLEVISION for the operation and running of the Content CABLEVISION and
PROVIDER will negotiate in good faith the terms of usage. CABLEVISION is no way
obligated to use this server system for the delivery of the games.
3.3 a) PROVIDER shall pay for all costs associated with the development
of the Content prior to Launch (as defined in Exhibit D). After Launch, subject
to PROVIDER's rights in Section 3.1 above, any work associated with the
redevelopment or refinement of such Content (except as same relates to new set
top box or software release), must be requested in writing by CABLEVISION and be
developed pursuant to a mutually agreeable cost and timetable.
b) At Cablevision's discretion, PROVIDER shall retain full
responsibility for hosting of the Content. Such hosting shall meet CABLEVISION'S
site performance standards for virtual channels as documented in CABLEVISION'S
Usability Guidelines.
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c) PROVIDER shall conduct quality assurance testing on the Content
on all applicable CABLEVISION deployed SONY and Scientific Atlanta digital cable
boxes and appropriate configurations therein, including but not limited to XXXX,
OS, Inview and HTML Engine, before submitting such Content to CABLEVISION. The
quality assurance testing includes but is not limited to the assurance that
production versions of the application will run error free on CABLEVISION's
network and the running of such application on CABLEVISION's network will not
have any negative impact on CABLEVISION'S core cable service. CABLEVISION shall
provide reasonable, mutually agreeable access to its head end and development
labs in order for PROVIDER to provide such quality assurance testing on the
Content. If CABLEVISION incurs certification costs with regard to the Content
provided by PROVIDER hereunder, both parties agree to negotiate in good faith at
that time with respect to an agreed upon certification payment.
d) PROVIDER shall conform the Content to all reasonably required
CABLEVISION engineering requirements and guidelines stipulated in the
Cablevision Usability Guidelines as set forth at xxx.xxxxxxxxxxx.xxx as same may
be modified from time to time. Further, PROVIDER shall deliver Content that is
supportable on any existing version of the Scientific Atlanta set-top box that
CABLEVISION deploys during the Term, provided such set-top boxes are game
compatible, as well as such Content that is mutually agreed to work on
game-compatible SONY set-top boxes, all as further described in Exhibit A.
CABLEVISION shall use commercially reasonable efforts to assist PROVIDER in
obtaining the necessary set-top boxes to use during development of the Content.
4. FEES
4.1 CABLEVISION shall pay PROVIDER fees for use of the Content according
to the license fee schedule set forth in Exhibit B and in the manner set forth
herein (the "License Fee").
4.2 CABLEVISION shall pay PROVIDER the License Fee owed for each month
during the Term in United States Dollars within forty-five (45) days following
the last day of such month, together with a statement in writing (the " License
Fee Statement") containing the amount and calculation of License Fee earned and
the Retail Price (as defined in Exhibit B) charged by CABLEVISION in such
preceding month with respect to the Content.
4.3 Notwithstanding paragraph 4.2, if CABLEVISION is legally required by
United States tax authorities to deduct withholding taxes from amounts payable
to PROVIDER and if CABLEVISION is able to provide to PROVIDER an appropriate
certificate or other official documentation which will enable the tax to be
claimed back by PROVIDER, then PROVIDER may, at its discretion, accept payment
of the amount payable less the amount of tax that can be claimed back by
PROVIDER from CABLEVISION. If no such certificate or documentation is provided
or if the certificate or documentation is unsuitable to enable PROVIDER to claim
back the tax, then the full amount gross of withholding tax will be payable by
CABLEVISION in accordance with paragraph 4.2.
4.4 PROVIDER and CABLEVISION agree to consult and co-operate in order to,
where lawfully possible, avoid, minimize or reclaim for the benefit of
CABLEVISION and/or PROVIDER any such deductions.
4.5 CABLEVISION agrees to release and indemnify PROVIDER from and against
all liability of whatever nature rising out of CABLEVISION'S failure duly and
timely to pay and discharge any of the above mentioned taxes.
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5. OWNERSHIP AND LICENSES
5.1 PROVIDER acknowledges and agrees that as between CABLEVISION and
PROVIDER, CABLEVISION, its parent or affiliate companies, shall retain sole and
exclusive right, title and ownership in and to all CABLEVISION Proprietary
Materials, as defined herein. It is further understood by the parties hereto
that no title to nor ownership of the CABLEVISION Proprietary Materials, or any
part thereof is being transferred to PROVIDER hereby and that CABLEVISION shall
exclusively retain all IPR therein, including without limitation rights in and
to the CABLEVISION Marks, logos, trade and business secrets, copyrights, and
patents belonging to CABLEVISION, and any and all other rights embodied in,
related to, or represented by, the CABLEVISION Proprietary Materials.
5.2 Subject to the licenses granted to CABLEVISION in Sections 5.3 , 5.4
and 5.5 hereof, CABLEVISION acknowledges that, as between the parties, PROVIDER,
its parent or affiliate companies and licensors shall retain sole and exclusive
right, title, and ownership in and to all Content, all IPR therein, the PROVIDER
Marks and the Licensor Marks. It is further understood by the parties hereto
that no title to or ownership of the Content and the IPR therein, or any part
thereof, nor of the PROVIDER Marks and the Licensor Marks, is being transferred
to CABLEVISION hereby and that, as between the parties, PROVIDER and its
licensors shall exclusively retain all IPR therein, and any and all other rights
embodied in, related to, or represented by, the Content, the PROVIDER Marks and
the Licensor Marks.
5.4 Unless terminated by PROVIDER in accordance with the terms of this
Agreement, PROVIDER hereby grants to CABLEVISION for the Term, with effect from
the date of Initial Launch (as defined in Exhibit D) of Content, subject to the
terms of this Agreement, a non-exclusive, object-code only, non-transferable
license (without the right to sub-license) within the Territory, to use the
object code of the Content solely for the following:
(i) to make the Content available to Users as part of the Service and to
make copies for back-up purposes only;
(ii) consent, to use the Content only to the extent reasonably necessary
in connection with any and all press releases, online and offline
marketing and advertising and other promotional materials related to
the Content.
5.5 Unless terminated by PROVIDER in accordance with the terms of this
Agreement, PROVIDER hereby grants to CABLEVISION for the Term a non-exclusive,
royalty-free license within the Territory to utilize solely the executable,
object-code of the Format and Use Software developed and provided by PROVIDER as
further detailed in Exhibit A, solely for the purpose of receiving, formatting,
using, reproducing, distributing, transmitting and publicly displaying the
Content in the manner authorized and set forth in this Agreement.
In addition, unless terminated by PROVIDER in accordance with the terms of
this Agreement, PROVIDER hereby grants to CABLEVISION for the Term a
non-exclusive, royalty-free license within the Territory to utilize the PROVIDER
Marks whether now existing or subsequently developed as incorporated in any and
all media, solely in connection with CABLEVISION'S advertisement and promotion
of the Content, whether alone or in conjunction with the advertisement and
promotion of other services and products made accessible, owned and/or operated
by CABLEVISION. Notwithstanding anything to the contrary in this Agreement,
CABLEVISION agrees that it has no license or other right to use, and shall not
use, any of the Licensor Marks for any purpose whatsoever without the express
written permission of PROVIDER in each instance.
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5.5 CABLEVISION hereby grants to PROVIDER for the Term a royalty-free,
non-exclusive and non-transferable right and license during the Term to use and
copy such of the CABLEVISION Proprietary Materials as may be reasonably
necessary for the development, provision and modification of the Content and the
performance of the PROVIDER'S obligations under or relating to this Agreement.
5.6 Except as expressly provided for herein and except for expressly
authorized back-up copies, testing and demonstration purposes, CABLEVISION shall
make no other copies of the Content. CABLEVISION shall not reverse engineer,
decompile or otherwise attempt to create the source code from the Content, nor
shall it modify, translate or create derivative works based on the Content.
CABLEVISION shall not sub-license, rent, lease, sell or otherwise transfer or
distribute copies of the Content to any third party, whether as a stand-alone or
bundled product unless otherwise agreed in writing in advance by PROVIDER.
CABLEVISION shall not exceed the scope of the licenses granted in this Section
5. CABLEVISION may not remove or change any copyright or trademark notice and
any other notices that appear on the Content or on any copies thereof.
CABLEVISION shall supervise and control the use of the Content by its employees,
agents and subcontractors to ensure that such use is in accordance with the
terms of this Agreement. PROVIDER hereby reserves all rights in and to the
Content and the IPR therein that are not expressly granted to CABLEVISION in
this Agreement.
6. MOST FAVORED NATIONS
6.1 Prior to the Effective Date of this Agreement, or during the Term and any
renewal thereof, in the event PROVIDER has or shall license the same (or
substantially similar) Content to any cable distributor, overbuilder, satellite
company or video distributor in the Territory on terms that are more favorable
than those offered by PROVIDER to CABLEVISION pursuant to this Agreement,
Provider shall promptly notify Cablevision in writing of such fact and Provider
shall offer Cablevision the right to incorporate into the Agreement such more
favorable term(s), condition(s), provision(s), or revenue share as Cablevision
may select, provided that CABLEVISION must also accept any "Contingent Terms"
(as defined below). Such offer shall be made available to CABLEVISION within
twenty (20) days of the completion of such competitive offering and CABLEVISION
shall have the right to either accept or reject the relevant terms by providing
written notice to PROVIDER within thirty (30) days after receiving notice from
Provider, at which time, if accepted, such more favorable provision(s) and any
Contingent Term(s) shall take effect. Notwithstanding the foregoing, this most
favored nations provision shall not apply to any agreements, terms or conditions
related to trial periods, field tests or similar temporary or diagnostic
arrangements.
"Contingent Terms" shall mean any material term(s) or condition(s) contained in
the agreement with such other distributor, or expressly negotiated out of such
agreement with such other distributor, for the exhibition of the Content, (1)
the inclusion or omission of which was bargained for in exchange for agreeing to
the more favorable provision, and (2) that has not been created with the purpose
of discriminating against Cablevision or frustrating the application of this
most favored nations provision. Notwithstanding the preceding sentence,
Cablevision shall not be required to accept any Contingent Term that Cablevision
cannot reasonably perform (e.g., marketing support payments to distributors
exclusively in the Los Angeles DMA if Cablevision does not operate in the Los
Angeles DMA), however, in such event, Cablevision shall be required to accept a
reasonable alternative or equivalent to such Contingent Term. In addition, under
no circumstances shall Contingent Term(s) be defined to include any of the
following (1) another distributor's actual, projected, or committed number of
Content subscribers, system subscribers, or total basic subscribers; (2) launch
and/or carriage of any of Provider's other content or services; (3) any
limitations on packaging rights; (4) any limitations on Cablevision's deletion
rights; or (5) any modification to the provisions set forth in this most favored
nations provision.
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Upon written request of Cablevision, but in no event more than once a year
during the Term of the Agreement, Provider agrees to provide a written
certification to Cablevision signed by an Officer of Provider confirming
Provider's compliance with this most favored nations provision.
7. CONTENT MARKETING
7.1 Marketing of the Content, and any component thereof, shall be as
provided in Exhibit C.
8. CABLEVISION'S RIGHTS
8.1 Prior to Launch of the Content on the Service CABLEVISION shall have
the right to preempt any Content for technical reasons for as long as
CABLEVISION acting reasonably deems the Content does not comply in all material
respects with the functionality of the games listed in Exhibit A, CABLEVISION's
usability guidelines or has a negative performance impact on CABLEVISION'S core
digital cable services.
8.2 Subject to the bundling restrictions requirements of Exhibit B and the
restrictions in this Agreement regarding the use of Licensor Marks and the
Licensor IPR, the Content shall be displayed in a menu or content category or
listing of the Service to be determined by CABLEVISION. In addition, subject to
the requirements of Exhibits B and C, CABLEVISION, at its sole discretion, may
also feature the Content in one or more additional menus, content categories or
listings to be determined by CABLEVISION.
8.3 CABLEVISION, by mutual agreement with PROVIDER, may offer e-commerce
or other interactive commerce elements in association with the Content outside
of the Games Portal which inventory is owned wholly by Cablevision. In the event
that PROVIDER elects to participate in such e-commerce and other interactive
commerce elements, the parties shall negotiate a separate written agreement in
good faith.
8.4 Notwithstanding any other term contained herein to the contrary,
CABLEVISION reserves the rights to license or create other free, pay-per-play
and subscription based games, provided that it does not include any of the games
incorporated and adapted in the Content or that are otherwise licensed by
PROVIDER for interactive television use.
9. PRESS RELEASE
9.1 The parties shall issue a mutually approved press release regarding
the distribution of the Content on the Service. Such release shall not be made
without the express written approval of each party. CABLEVISION shall retain
sole discretion regarding the date of the Press Release.
10. REPRESENTATIONS AND WARRANTIES
10.1 PROVIDER and CABLEVISION each represents, warrants and covenants
that:
10.1.1 it has the power and authority to enter into this Agreement
and to fully perform its obligations hereunder, and this Agreement
has been duly executed by it and constitutes a valid and enforceable
obligation of it;
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10.1.2 it has not made nor will it make any contractual or other
commitment, which will or may prevent, impair or hinder its full
performance of this Agreement;
10.1.3 it complies with and will comply with all federal, state and
local laws, rules and regulations;
10.2 PROVIDER further represents, warrants and covenants that:
10.2.1 it owns or controls all rights necessary for the exhibition
of the Content on the Service, except those rights belonging to
CABLEVISION, and is empowered to grant the rights, license and
privileges granted hereunder;
10.2.2 it knows of no adverse claim within the Territory with
respect to its rights in the Content or in connection with or in
relation to any part thereof;
10.2.3 the Content does not infringe the IPR of a third party in the
Territory.
10.2.4 without limiting any other term or condition set forth
herein, and without limiting any other remedies available to
CABLEVISION hereunder, in the event that the Content or any
component thereof infringes or is claimed to infringe upon a third
party's rights or requires the consent of or payment to any third
party, PROVIDER shall, in addition to and without limiting any of
its other obligations to CABLEVISION and without any additional cost
to CABLEVISION either (i) promptly make the appropriate required
payments or otherwise procure for CABLEVISION the right to continue
using such material or materials or (ii) modify such materials or
replace them with substantially equal or equivalent materials so as
to make the Content or component thereof non-infringing.
10.2.5 All Content will have been tested for viruses, worms, date
bombs, time bombs, or other code that is specifically designed to
cause software to cease operating, or to damage, interrupt, or
interfere with equipment or data, in accordance with industry
standards.
10.2.6 The Content shall also include technical performance that is
on par with all set top box gaming launched on digital platforms
similar to the CABLEVISION platform.
10.3 CABLEVISION further represents, warrants and covenants that:
10.3.1 CABLEVISION Proprietary Materials do not infringe the IPR of
a third party in the Territory.
10.4 CABLEVISION makes no representations, warranties or guarantees
concerning the accuracy, consistency, or quality of any transmissions of the
Content, of the audio or video components of the Service, or the accuracy or
quality of information or presentations on the Service.
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11. ADVERTISING STANDARDS
11.1Advertising shall only be permitted within the Content after written
approval of both parties is obtained in each instance. Any revenues generated by
advertising within the Content or anywhere on the screen while the Content is
being displayed shall be mutually agreed upon. Advertising within the Content
will not promote or advertise games or game packages other than the Content.
Notwithstanding the foregoing, PROVIDER shall be permitted to promote the
Content and aspects thereof within the Content and otherwise, subject to the
approval of CABLEVISION. Any and all PROVIDER-created or supplied advertising
and promotions shall be consistent with general industry advertising standards
and shall further be subject to, and in accordance with, such rules and
regulations as may be promulgated by CABLEVISION and disclosed to PROVIDER.
CABLEVISION reserves the right, in its sole discretion, to refuse to exhibit
advertising that promotes the products or services of a direct competitor of any
of CABLEVISION'S products or services. In addition, CABLEVISION reserves the
right, in its sole discretion, to refuse to exhibit any advertising that
CABLEVISION deems to be defamatory, abusive, indecent, obscene, in violation of
CABLEVISION policy or which, for reasons of quality, does not otherwise meet
with approval of CABLEVISION. Subject to the foregoing, each party understands
and agrees that no advertising or promotion, including without limitation
advertising or promotion of the Content and Services, will be implemented within
the Content or anywhere on the screen while the Content is being displayed
unless and until it has been approved by CABLEVISION and PROVIDER.
Notwithstanding anything to the contrary, nothing herein shall prohibit or limit
CABLEVISION from permitting advertising within the Game Portal at its sole
discretion. For purposes herein, "Game Portal" shall be defined as all screens
that introduce and lead up to, but exclude the actual launching of interactive
games, including the Content. CABLEVISION agrees to submit to PROVIDER, for its
prior written approval, any marketing, advertising, press releases, or other
promotional materials referencing PROVIDER's associated, iTV Games, Titles, or
Marks.
12. BRANDING
The Content shall be presented with a brand or brands mutually determined by the
parties. The parties agree to provide the necessary, reasonable licenses
required, to the extent within their respective control, for any such mutually
agreed-upon branding.
13. INDEMNIFICATION; LIMITATION OF LIABILITY
13.1 Each party (the "Indemnifier") shall, subject to clause 13.2, 13.3
and 13.4 below, indemnify, defend and hold harmless the other party and its
parent company or companies, affiliates, subsidiaries, successors and assigns
and their respective employees, officers, and directors (the "Indemnified")
against all third-party claims for damages, expenses and losses and pay all
costs as they are incurred arising out of any action brought against the
Indemnified to the extent that it is based on a claim that the Indemnifier's
Intellectual Property Rights infringe or misappropriate a third party
Intellectual Property Right existing as of the Effective Date within the
Territory (the "Claim") PROVIDED THAT:
(a) each Party shall as promptly as is practical notify the other in
writing of any Claim of which it has notice; and
(b) neither Party shall make any admission as to liability and the
Indemnified shall not agree to any settlement or compromise of any
Claim without the prior written consent of the Indemnifier, nor will
the Indemnifier enter into a settlement that materially and
adversely affects the Indemnified without prior written approval;
and
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(c) Indemnifier shall, subject to the right of Indemnified to
participate at its own expense, have complete control over the
defense and/or settlement of any Claim; and
(d) Indemnified shall, at Indemnifier's request and expense, give
Indemnifier all reasonable assistance in connection with the defense
and/or settlement of such Claim.
13.2 Notwithstanding anything to the contrary in this Agreement, except
for claims arising under this section 13, in no event shall any party be liable
to the other or any third party for any incidental, speculative or consequential
damages or lost profits, whether foreseeable or not (including, but not limited
to, those arising from negligence), occasioned by any failure to perform or the
breach of any obligation under this Agreement for any cause whatsoever.
13.3 The warranties in clause 10 and indemnity given by PROVIDER above
shall not apply to any infringement arising from any modification or alteration
of the Content by CABLEVISION or any third party unless expressly authorized in
writing by PROVIDER or from the use of the Content in any way not permitted
under this Agreement or as a result of the failure to use the latest release of
the Content as supplied by PROVIDER. CABLEVISION acknowledges that Except as
expressly set FORth above, all other warranties in respect of the CONTENT,
whether express or implied, under common law, statute or otherwise, including as
to condition, performance, satisfactory quality, fitness for a particular
purpose or any other kind whatsoever, are expressly disclaimed and excluded by
provider.
13.4 The warranties in clause 10 and indemnity given by CABLEVISION above
shall not apply to any infringement arising from any modification or alteration
of the CABLEVISION Proprietary Materials by PROVIDER or any third party unless
expressly authorized in writing by CABLEVISION or from the use by PROVIDER of
the CABLEVISION Proprietary Materials in any way not permitted under this
Agreement or as a result of the failure by PROVIDER to use the latest release of
the CABLEVISION Proprietary Materials as supplied by CABLEVISION. PROVIDER
acknowledges that except as expressly set forth above, all other warranties in
respect of the CABLEVISION Proprietary Materials, whether express or implied,
under common law, statute or otherwise, including as to condition, performance,
satisfactory quality, fitness for a particular purpose or any other kind
whatsoever, are expressly disclaimed and excluded by cablevision.
14. DATA SHARING
CABLEVISION shall attempt to collect certain User data and shall share
aggregate data regarding User preferences, and usage as they relate to the
Content to the extent available and to the extent possible without violating any
existing CABLEVISION privacy policy, confidentiality policy, other legal or
contractual restraints or applicable law.
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15. CONFIDENTIALITY
15.1 Each party agrees that the following materials and information and
all copies thereof of whatever nature or medium are confidential and are the
proprietary information and trade secrets of the disclosing party: (i) the
software and algorithms possessed by either party and all source documents
relating to such software; (ii) proprietary business information of either party
(including, without limitation, the names and addresses of each party's users,
information providers, and suppliers), and business information that either
party does not generally make available to the public; (iii) the methods, means,
personnel, equipment, and software by and with which each party provides its
products and services; (iv) any discussions, letters, drafts, or other documents
relating to this Agreement, or the provisions of this Agreement, but not the
fact of this Agreement's existence; (v) subscriber lists, User personal
information or User personal data; and (vi) any other information that either
party reasonably designates, by notice in writing delivered to the other party,
as being confidential or a trade secret ("Confidential Information"). Each party
undertakes that except as authorized in writing by the other party, it will
neither disclose any Confidential Information to any person, including the
media, nor use the Confidential Information other than for the purposes of this
Agreement. Each party shall use its best efforts and shall take every reasonable
precaution to protect and maintain the confidentiality of the Confidential
Information, which precautions shall be at least equivalent in scope and effect
to the measures taken by that party to protect its own Confidential Information.
15.2 In the event (i) that this Agreement is canceled or terminated for
any reason; (ii) the party in receipt of the Confidential Information (the
"Receiving Party") no longer require(s) the Confidential Information to perform
its obligations hereunder, and/or (iii) the party that has disclosed the
information (the "Disclosing Party") so requests in writing, the Receiving Party
will promptly return all Confidential Information to the Disclosing Party
including all copies thereof and all analyses, compilation studies or other
documents concerning such Confidential Information prepared by such Receiving
Party or on its behalf. Upon the request of the Disclosing Party, the Receiving
Party may be required to destroy all or any part of the Confidential Information
including all documents, memoranda, notes and other writings whatsoever prepared
by the Receiving Party and all copies thereof, and to certify such destruction
in writing. The obligation of confidentiality shall extend to the Receiving
Party's affiliates and/or directors, officers, employees, representatives or
agents.
15.3 No information that would otherwise be proprietary or confidential
for the purposes of this Agreement shall be subject to the restrictions on
disclosure if and to the extent that: (i) such information is in, or becomes
part of, the public domain otherwise than through the fault of the Receiving
Party; (ii) such information was known to the Receiving Party prior to the
execution of this Agreement as proven by the Receiving Party's written records;
(iii) such information was revealed to the Receiving Party by a third party
having no obligation to hold such information confidential; or (iv) such
information is developed independently of any Confidential Information by the
Receiving Party.
15.4 Without limiting the scope of generality of any of the foregoing, it
is specifically understood and agreed that PROVIDER shall not, for any purpose
whatsoever disclose, directly or indirectly, any information concerning the
identity, personal statistics or history, or interests of Users of the Content
or Service, other than such information provided in accordance with Section 16.2
and Section 15.1 above, without the prior written approval of CABLEVISION.
PROVIDER agrees that all such personally identifiable information, including
financial data and any User's name, address, telephone number, facsimile number,
electronic mail address and other like data will be used by PROVIDER for its own
purposes only, (to fulfill its obligations hereunder) and shall not be disclosed
or sold to any third parties. The restricted information referred to in Section
15 and in this Section 15.4 shall be treated as Confidential Information.
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15.5 The parties each recognize that irreparable harm can be occasioned to
the other party by the unauthorized disclosure, reproduction, or use of the
Confidential Information and that monetary damage will be inadequate to
compensate for such breach. The parties agree that in the event of such failure
to comply by the Receiving Party, the Disclosing Party shall be entitled, in
addition to all other remedies available at law, to seek an injunction
restraining such future breaches without having to post any security or to prove
the inadequacy of available remedies at law.
16 TERMINATION OF AGREEMENT
16.1 Either party may terminate this Agreement upon forty-five (45) days
prior written notice to the other party if the other party is unable to pay its
debts when they become due, makes an assignment for the benefit of creditors,
files any petition or has any petition filed against it under the bankruptcy
laws of any jurisdiction, has or suffers a receiver or trustee to be appointed
for its business or property, or is adjudicated a bankrupt or insolvent.
CABLEVISION and PROVIDER shall also each have the right to terminate this
Agreement upon forty-five (45) days prior written notice to the other party if
the other party is in material breach of this Agreement. Such notice must
identify the breach and the breaching party shall have such forty-five (45) day
period to correct the breach. If the breach is not cured in the forty-five (45)
day period, the Agreement shall terminate at the end of such notice period.
16.2 Notwithstanding anything contained herein to the contrary,
CABLEVISION may terminate this Agreement upon thirty (30) days prior written
notice to PROVIDER at any time without financial penalty. In the event that
CABLEVISION chooses to terminate the contract for any reason during the first
two years, other than PROVIDER'S breach, gross negligence or willful misconduct,
CABLEVISION shall pay to PROVIDER the difference between: (i) the sum of actual
revenue earned by PROVIDER on the CABLEVISION platform and one hundred thousand
dollars ($100,000.00) with a maximum payment not to exceed fifty thousand
dollars ($50,000.00). In the event that the above referenced sum of PROVIDER
revenues equals or exceeds one hundred thousand dollars ($100,000.00), no
termination payment shall be due and payable. In the event that CABLEVISION
terminates this Agreement after the second year of the term, no termination
payment whatsoever shall be due.
16.3 Upon termination, in addition to such obligations as may be specified
in other sections hereunder, (i) PROVIDER and CABLEVISION shall immediately
cease all use and distribution of the CABLEVISION IPR and Content respectively
and PROVIDER shall promptly delete such CABLEVISION IPR and CABLEVISION
Proprietary Materials from its computer systems and CABLEVISION shall delete the
Content from its computer systems; (ii) CABLEVISION shall make all payments
accrued prior to any such termination of this Agreement and still owing to
PROVIDER within ten (10) days of termination and shall include therewith the
License Fee Report required by this Agreement. This shall be in addition to and
without limiting any other rights and remedies to which either party may be
entitled at law or equity or pursuant to the terms of this Agreement.
17. NOTICES
17.1 All notices and other correspondence under this Agreement shall be
made in writing and shall be sufficiently given on the date received (i) if sent
by certified mail (postpaid and return receipt requested), or (ii) if sent by
Federal Express or comparable overnight courier of national reputation with
proof of receipt; to:
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IF TO PROVIDER: IF TO CABLEVISION:
ZONE4PLAY. CSC Holdings, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxxx Xxxxxx
Director Digital Product Development
with a copy to:
CSC Holdings, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attn: Legal Department
17.2 AUDIT
During the Term, and for a period of two (2) years thereafter, PROVIDER shall
have the right, during normal business hours and upon reasonable notice to
CABLEVISION, to conduct an audit of CABLEVISION'S books and records to confirm
or investigate CABLEVISION'S compliance with the terms of this Agreement,
including, without limitation and where applicable, the calculation of any
amounts due to PROVIDER pursuant to this Agreement, or any other sums due to
PROVIDER for any period or periods of time. CABLEVISION shall provide to
PROVIDER and its agents and representative with such books and records and such
financial and other information and shall make available to PROVIDER and its
agents and representatives such officers, directors, employees and agents of
CABLEVISION as PROVIDER shall reasonably request. Such audit shall be scheduled
and conducted so as not to cause an unreasonable disruption of CABLEVISION'S
business operations, and in no case shall such audits be conducted more than one
(1) time in any twelve (12) month period. The cost of such audit shall be borne
by PROVIDER.
18. GENERAL
18.1 Relationship Between the Parties: Neither PROVIDER nor CABLEVISION
shall be, or shall hold itself out to be, the agent of the other under this
Agreement. Nothing contained herein shall be deemed to create, and the parties
do not intend to create, any relationship of partners or joint ventures as
between them with respect to this Agreement.
18.2 Independent Contractor: PROVIDER shall, for all purposes under this
Agreement, be deemed to be acting as an independent contractor and not as an
employee or agent of CABLEVISION.
18.3 Choice of Law: This Agreement and all collateral matters relating
thereto shall be construed in accordance with the internal laws of the State of
New York, applicable to agreements fully made and to be performed therein,
irrespective of the place of actual execution and/or performance of the parties
hereto. The parties agree that any conflict of laws provisions, where
applicable, are hereby excluded by this express agreement to an applicable law
and jurisdiction. The prevailing party in any dispute shall be entitled to an
award of reasonable attorneys' fees and costs.
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18.4 Assignment: This Agreement may not be assigned by either party
without the specific prior written consent of the other, except that either
party may assign this Agreement without such consent to a successor in interest
to all or substantially all of the assets of such party. This Agreement shall be
binding on the permitted assigns and successors (whether through merger,
acquisition, operation of law, or otherwise) of the parties.
18.5 Waiver: The failure of either party to exercise any right provided
for herein shall not be deemed to be a waiver of any other right hereunder. No
waiver of any right or breach of this Agreement shall be deemed to be a waiver
of any subsequent exercise of a right or breach of this Agreement.
18.6 Invalidity: If any provision of this Agreement, or the application of
such provision to any person or circumstance, is held to be inconsistent with
any present or future law, ruling, rule or regulation of any court or
governmental or regulatory authority having jurisdiction over the subject matter
of this Agreement, such provision shall be deemed to be modified to the minimum
extent necessary to comply with such law, ruling, rule or regulation and the
remainder of this Agreement, or the application of such provision to persons or
circumstances other than those as to which it is held inconsistent, shall not be
affected. If any provision is determined to be illegal, unenforceable or void,
and, if the remainder of this Agreement shall not be affected by such
determination and is capable of substantial performance, then such void
provision shall be deemed rescinded and each provision not so affected shall be
enforced to the extent permitted by law.
18.7 Force Majeure: For the purposes of this Agreement, "Force Majeure"
shall mean any event that a party hereto could not foresee, such as fire, flood,
acts of God or public enemy, electronic failures, earthquakes, governmental or
court order, national emergency, strikes or labor disputes, the effect of which
it could not reasonably prevent or predict and that renders impossible or
impractical the performance of contractual obligations either totally or in
part. The party invoking a Force Majeure shall notify the other party in writing
within three (3) business days of its occurrence by accurately describing all
the circumstances of the situation involved and its effect upon the performance
of its contractual obligations. The taking place of a Force Majeure shall have
the effect of suspending the obligations of the party that has invoked the
provisions of this Section to the extent such obligations are affected by the
Force Majeure. Contractual dates shall be extended for a period equal to the
duration of a Force Majeure at the option of the non-invoking party. The
cessation of a Force Majeure shall be communicated by notice within three (3)
business days of its occurrence by the party that invoked it.
18.8 Non Recourse: Anything contained in this Agreement to the contrary
notwithstanding, it is expressly understood and agreed by the parties hereto
that each and every representation, undertaking, and agreement made in this
Agreement by the parties to this Agreement was not made or intended to be made
as a personal representation, undertaking or agreement on the part of any
Incorporator, director, officer or partner, past, present, or future, of either
party, all of which recourse, whether in common law, in equity, by statute or
otherwise, is hereby forever waived and released.
18.9 Survival: The provisions set forth in Sections 2, 4, 5.1, 5.2, 10,
13, 15, 16.3, 17.1, 17.2 and 18 shall specifically survive any expiration or
termination of this Agreement.
18.10 Section Headings: Section or paragraph headings used herein are for
convenience and shall not be deemed a part of this Agreement.
18.11 Entire Agreement: This Agreement sets for the entire agreement and
understanding of the parties relating to the subject matter hereof and
supersedes all prior agreements and understanding relating to the subject matter
hereof. This Agreement shall not be modified other than in a writing signed by
each of the parties hereto.
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IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be
executed by its duly authorized representatives as of the Effective Date.
ZONE4PLAY. CSC HOLDINGS, INC.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxxx
----------------------------- ------------------------------
Title: CEO and president Title: VP ITV Operations & Development
Name: Xxxxxx Xxxxxx Name: Xxxxxxx Xxxxxxxx
Date: Date:
---------------------------- ----------------------------
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EXHIBIT A
SCOPE OF CONTENT
PROVIDER will develop and provide the Content in the form of a pay per day/play
application:
Pay per play/day Definition: Any game offered by Cablevision on a pay per play,
pay per day, or any hourly or day/week increment basis for a fee.
CABLEVISION and PROVIDER will mutually agree on the game/games to be included as
the pay per day/play application. Any additional games to be included other than
the ones listed below will be negotiated in good faith at another time.
GAMES:
------
Bingo
Texas Hold Em
Slingo
* Slingo Millennium
* 5-Card Slingo
* Bumper
All development will be done in a timely manner by PROVIDER and will go through
CABLEVISION'S standard development and QA process.
Cablevision has the sole discretion in placement and duration of game on the iO
service.
Cablevision has the sole discretion in choosing what platform PROVIDER will
develop game for.
Word based games must have content that is randomized where applicable in order
for game play to be different each time a viewer plays.
Each game will have a free play component that may include free play or demo
levels in order to encourage viewers to subscribe to the content.
Cablevision in its sole discretion may take the game/games down after launch at
any time.
If CABLEVISION supplies the proper documentation/code for game controller
implementation, PROVIDER must make their games compatible with
documentation/code supplied whether such document/code supplied is Cablevision's
or that of a third party at no additional cost to Cablevision.
o PROVIDER shall assist CABLEVISION in assembling marketing materials, and
PROVIDER shall deliver at no additional cost, functional specifications,
full help descriptions, test scripts for completed games for quality
assurance, including but not limited to:
>> B-roll of Content on BetaSP and Quicktime
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>> Reasonable animation of game characters to CABLEVISION'S
specifications for any marketing related effort
>> PSD's of all intro and game screens
>> Flash demo for xX.XX or other iO Consumer websites
>> All graphics needed to populate PROVIDER'S games portals
>> Banners
>> Zap 2it panels
>> Field communications documents
o All games must generate a score that may get posted to the top score
leaderboard.
FORMAT AND USE SOFTWARE
PROVIDER shall deliver the following software components in order to allow
CABLEVISION to format and use the Content subject to Section 5.
For the SA environment:
-> PTV executables (debug and production versions)
-> Release log.
-> Test Scripts
->
For the SONY environment:
The "executables" are HTML files with embedded JavaScript.
Assets:
* .HTML files
* .css files
* .js files
* .GIF images
* .JPG images
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EXHIBIT B
FEES/LICENSE FEE
1. The pay per play/day retail price charged to subscribers for the game
package shall be determined by CABLEVISION in its sole discretion, but in
no event less than $_.10__. CABLEVISION shall pay to PROVIDER a monthly
license fee as follows: CABLEVISION shall pay to PROVIDER a monthly
license fee that is 50% of all collected fees for the pay per play/day
game.
For purposes hereof, the "retail price" shall mean the price charged by
Cablevision to its subscribers which is solely attributable to receipt of
the game package, but shall not include any equipment charges, taxes,
franchise fees, or similar fees which are not directly attributable to
receipt of the game package.
2. CABLEVISION, in its sole discretion, may offer a "free day", "free week"
of gaming with no License Fee due from CABLEVISION, with respect to such
"free day" or "free week" gaming, provided that Cablevision cannot exceed
(7) free days of play per quarter during the Term without PROVIDER's prior
written permission.
3. CABLEVISION employees can receive all games packages for free with no
license fee applicable.
4. CABLEVISION reserves the right to bundle any portion of the Content with
any other product or tiering offering of CABLEVISION, provided that the
parties shall first mutually agree upon any such bundling and the
commission or other fees due to PROVIDER as a result of such bundled
offer.
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EXHIBIT C
MARKETING
o CABLEVISION will promote at its discretion the content packages to its
subscribers and potential subscribers thru various means.
o CABLEVISION shall promote the Content packages on xxx.xx.xx. PROVIDER
shall assist with all related screenshots and Content descriptions.
o Any use by CABLEVISION of the Licensor Marks and any Licensor IPR must be
subject to prior approval of such licensors.
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EXHIBIT D
DEVELOPMENT AND ROLL OUT
o Sample code will be available by PROVIDER for technical due diligence by
XXXX 2004 and Cablevision can choose not to proceed with agreement by XXXX
2004 in the event that any aspect of the technology prohibits CABLEVISION
from achieving the desired quality in service. In addition,
notwithstanding Section 13 hereof, if during the due diligence process
CABLEVISION determines in its sole reasonable discretion, that any part of
the Content causes any part of CABLEVISION'S core service to be negatively
affected, CABLEVISION shall have the right to terminate this Agreement
immediately without penalty of any kind.
o PROVIDER and CABLEVISION shall mutually agree on a project development
process and timetable for the Initial Launch. The Initial Launch can be
changed at anytime at CABLEVISION'S discretion. Thereafter, all new games
and refreshes shall be developed as described in Exhibit A.
o PROVIDER and CABLEVISION shall agree upon functional specifications for
each game to be developed (the "Specifications").
o In the event that CABLEVISION changes versions or discontinues its use of
the Scientific Atlanta or SONY box platforms during the Term, PROVIDER
agrees to make commercially reasonable efforts to make changes to the
Content to make it compatible with the changed platform in a reasonable
timeframe and at no additional cost to CABLEVISION to be mutually agreed
upon between the parties.
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EXHIBIT E
PROMINENCE AND PLACEMENT OF CONTENT IN THE SERVICE
o Notwithstanding the foregoing, CABLEVISION reserves the right, in its sole
discretion, to redesign or modify the organization, structure, look and
feel and other elements of the Service at any time without prior notice,
under which circumstance listing and/or display of the Content will be
subject to the redesign or modification.
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