Exhibit 10(n)
CO-BRANDING AND MARKETING AGREEMENT
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Date: as of June 20,1997
CNNSI SANDBOX
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CNNSI, a division of Sandbox Entertainment Corporation
Cable News Network, Inc. 0000 Xxxx Xxxxxxxxx Xxxx
Xxx XXX Xxxxxx Xxxxx 000
Xxx 000000 Xxxxxxx, XX 00000
Xxxxxxx, Xxxxxxx 00000-0000 Contact: Xx. Xxxx Xxxxxxx
Contact: Xx. Xxxxx Xxxxx Ph: (000)000-0000
Ph: (000) 000-0000 Fax: (000)000-0000
Fax:(000) 000-0000
This Agreement is made as of the date specified above between CNNSI
Interactive, a division of Cable News Network, Inc. ("CNNSI"), and Sandbox
Entertainment Corporation ("Sandbox"), whereby Sandbox and CNNSI agree to
conduct a co-branded marketing effort for certain "Games" (as defined below),
and in connection therewith, Sandbox agrees to utilize certain of its
proprietary technologies and rights and to provide certain services and content
to CNNSI for use in connection with CNNSI's online services as more specifically
described below on the following terms and conditions:
1. Co-Branded Offering. During the Term, Sandbox hereby agrees to provide
certain services in support of the co-branded offering described herein (the
"Services"), specifically to develop and host, at a minimum, fantasy games for
professional football, basketball, baseball (subject to CNNSl's request), golf
and hockey, and, if permissible from a rights standpoint, the college basketball
tournament (the "Games") as further described on Schedule 1 attached hereto, for
distribution by the parties, during the term of this Agreement, by any means or
method now known or hereafter developed to users of CNNSl's or Sandbox's
web-based sites and services (collectively, the "Sites"). Sandbox agrees that it
will not provide any advertising supported or subscription-supported fantasy
sports games directly or indirectly in competition with the Games during the
Term of this Agreement. As more specifically described herein, Sandbox will
"host" the Games (the "Game Site") and provide all necessary support, including
implementation of a mutually agreeable advertising/page view tracking system for
the Game Site as further described herein. In addition, as between CNNSI and
Sandbox, Sandbox shall be responsible for all elements of the Games, including
securing any and all third party rights necessary for the final Games and
compliance with all applicable laws, rules and regulations. To the extent
certain rights are required for a proposed version of the Game but Sandbox is
unable
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to secure the same for any reason, Sandbox shall notify CNNSI and it is
understood that such element may be excluded from the final version. Without
limiting the generality of the foregoing, it is expressly understood and agreed
that Sandbox shall be solely responsible for compliance with all sweepstakes and
gaming rules and regulations and any prize fulfillment activities and shall
indemnify and hold CNNSI harmless from any claims related thereto. Sandbox
hereby agrees that it shall continuously update the Games on the Game Site in a
manner to refresh the content and provide gaming updates to users as agreed by
the parties. In addition, Sandbox agrees to designate one or more individuals to
act as "commissioner" for each Game and address user questions. Such
individual(s) shall be qualified to perform such task and be familiar with the
rules and regulations of the sport and the Game. CNNSI shall have the right to
use the Games, or portions thereof, to advertise, promote and/or market its
Site, the Game Site and the availability of the Games. Without limiting the
generality of the foregoing, such promotion may include text and/or graphic
references with or without a link on the CNNSI Site.
CNNSI and Sandbox will each retain approval rights over the design of
the Game Site, and all elements thereof, subject to the express understanding
that the design will include creative and navigational elements from the CNNSI
Site so as to provide a consistent CNNSI look and feel. At all times, each party
will retain ultimate approval rights over use of its respective proprietary
materials. Furthermore, CNNSI understands that certain parameters have already
been defined for the football Game and that its design must avoid creating
obstacles for the user (X, excessive graphic size and difficult navigation). As
part of the design, CNNSI shall determine appropriate links to and from its Site
and the Game Site and Sandbox shall implement such links as they involve the
Game Site; CNNSI shall be solely responsible for implementing any appropriate
links on its Site. By way of example only, CNNSI may elect, at its sole option
and to the extent permissible by its content providers, to provide gamers links
to its Site that will open a second window to permit the gamers to get current
information relevant to the Game from the CNNSI Site (X, news, scores, player
profiles, etc.).
Each party expressly understands that it shall have no right to
negotiate and/or enter into any binding agreements on behalf of the other party
and hereby covenants, represents and warrants that it shall take no action or
represent any authority to the contrary. CNNSI acknowledges and agrees that
Sandbox owns and retains all proprietary right, title and interest in and to the
Games and the technology and materials provided by it for use in the Games, and
CNNSI hereby disclaims any right, title or interest therein. Notwithstanding
Sandbox's ownership of rights in and to the Games, Sandbox will not utilize the
"look and feel" or other unique elements of the Game Site created jointly by the
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parties hereunder for any other project or offering. Furthermore, Sandbox
acknowledges and agrees that CNNSI owns and retains all proprietary right, title
and interest in and to the creative and navigational elements common to the
CNNSI Site as well as all content contributed by it to the Games or Game Site
("CNNSI Elements") and Sandbox disclaims any right, title or interest therein.
Sandbox agrees to perform the Services in a competent, conscientious and
professional manner, in accordance with CNNSl's reasonable requests and
requirements, and in accordance with all of the terms and conditions of this
Agreement.
2. Implementation/Delivery. CNNSI will advise Sandbox of its required input for
design for the Game Site as soon as possible and Sandbox will host and update
each Game in accordance with mutually agreed upon specifications for such
design, as the same may be modified from time to time during the Term. Prior to
the commercial launch of each Game, Sandbox will demonstrate the Game to CNNSI
for its approval. The parties agree that professional football will be the
initial Game launched on the Game Site and Sandbox agrees that the full contact
portion of such Game shall be fully operational and available to site users on
or before July 18, 1997 with a prototype ready for testing and approval by CNNSI
on or before July 7, 1997. Notwithstanding the foregoing, the commercial launch
of the Game Site and all Games shall be determined by mutual agreement of the
parties.
3. CNNSI Promotional Support. CNNSI has provided Sandbox an outline of its plan
designed to promote its Site, including promotion of the Games and Game Site,
and build traffic for the Site and the Games. CNNSI agrees to use reasonable
efforts to perform the activities described in its plan and to include and
perform cross-promotional activities in this plan, using available resources and
promotional inventory time on products and services of its affiliated and
subsidiary entities. During the Term, CNNSI will provide, at a minimum, monthly
reports indicating the location, time, media vehicle and frequency of
promotional activities related to its Site, the Games and/or the Game Site.
4. Marketing/Publicity. The parties agree to cooperate with one another to
provide information for marketing, public relations, publicity and general
promotional purposes. The parties shall have joint control over the substance
and timing over all such activities related to the Games and Game Site, but
agree to comply with reasonable requests of the other party in this regard.
Notwithstanding the foregoing, CNNSI shall have the absolute right to determine
the timing applicable to the initial press release announcing the launch of the
Game Site. Subject to each party's right to inspect all such materials in
advance and approve or disapprove the same as it relates to such party, each
party grants the other party the right to use its respective
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trademarks and trade names in advertising and printed materials solely in
connection with the rights and obligations of the parties under, and during the
term of, this Agreement. Without limiting the generality of the foregoing, each
party shall retain control over its trademarks and trade names at all times
(including as the same may be used in a URL for the Game Site) and may approve
or disapprove any materials containing the same in its sole discretion.
Following execution of this Agreement, the parties will work together in good
faith to issue an initial joint press release. The parties will, as they deem
appropriate, participate in joint press activities and other public relation
activities with the other during the Term of this Agreement.
5. Advertising/Sponsorship Opportunities. The parties hereby agree to cooperate
with one another regarding the sale of advertising (X, banners) and/or
sponsorships on or for the Game Site, with CNN retaining primary control over
the sale of advertising and Sandbox retaining primary control over the sale of
sponsorships. Accordingly, while both parties will have the opportunity to sell
advertising and sponsorships for the Game Site, the party bearing primary
responsibility must approve any proposed sales of that type by the other party
in advance. In an effort to facilitate cooperation and avoid any duplication in
sales efforts, the parties agree to establish and set forth in writing a list of
target accounts that each sales force has first priority in selling as soon as
practical after the date hereof. Each party will assist the other in its
respective efforts. Without limiting the generality of the foregoing, this
cooperation and mutual approval will focus on acceptable contract terms and
conditions, credit standards, rate integrity and pre-approval for any deviation
from the mutually agreed upon rate structure. Additionally, the parties agree to
yield to whichever form of sale (X, advertising or sponsorship) is best suited
to the particular advertiser in an effort to maximize overall opportunities,
sales and revenues for the Game Site. Sandbox will implement an advertising
tracking system approved by CNNSI on the Game Site to track traffic, page views
and other relevant data. Sandbox will provide monthly reports from the system
and deliver the same to CNNSI within five (5) business days of the close of each
month as further described in Paragraph 6 below. In addition, Sandbox shall be
responsible for the proper insertion and rotation of all such advertising and
sponsorships and will maintain accurate logs.
Net advertising revenues, which shall be defined as gross advertising
revenues derived from the sale advertising on the Game Site, less agency
commissions, shall be split between the parties *, with the party responsible
for selling the advertising entitled to retain the higher percentage. To the
extent any extraordinary costs are required to integrate an advertiser and the
parties agree upon such costs up front, the parties will absorb these costs on
an equal basis, with such
* Confidential information has been omitted and filed separately with the
Commission.
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costs deducted from gross revenues prior to determining either party's net
payment on that sale.
Regardless of which party is responsible for the sale of the
sponsorships, the parties hereby agree that all net sponsorship revenue, which
shall be defined as gross revenue derived from sponsorship sales on the Game
Site, less any commissions or other third party fees, shall be split *. Sandbox
will incur and absorb the basic creative and production costs associated with
integrated sponsorships and shall not be entitled to any reimbursement therefor
absent the express prior written agreement of the parties to the contrary.
Each party hereby agrees to maintain complete and accurate books and
records regarding its sale of advertising and/or sponsorships on the Game Site
during the Term of this Agreement and for a period of two (2) years thereafter.
Each party shall be responsible for billing, invoicing and collection activities
related to its sales activities hereunder. The parties will agree upon
appropriate and consistent billing, invoicing and collection procedures as soon
as possible after execution of this Agreement and each party will comply with
such procedures throughout the Term. Copies of invoices will be sent to the
non-selling party simultaneously with delivery to the third party and copies of
all advertising or sponsorship contracts must accompany insertion orders prior
to the start of a campaign. Within thirty (30) days of the close of each
calendar month, each party shall distribute amounts payable to the other party
for that month to such party along with a complete statement for selling
activities during such time.
6. Game Site Usage Reports. As discussed generally above, Sandbox will maintain
and provide, at a minimum, equally aggregated Game Site information/reports on
users, registered visitors and page impressions to the detail reasonably
specified by CNNSI. This will include daily tracking of advertising banner
impressions and click-throughs, as well as sophisticated aggregate reporting of
advertising impressions and click-throughs. In this regard, Sandbox will provide
a mutually agreed upon audit system for its proprietary advertising server
software. Implementation must occur at the time of the launch, contingent upon
the third party audit provider's ability to comply with the schedule. CNNSI will
provide, at a minimum, weekly Site information/reports relevant to the
performance of graphic and text links to the Game Site contained thereon,
including impressions and click-throughs.
7. CD-ROM Product. In addition to the Services contemplated by Paragraph 1 above
Sandbox agrees to create a CD-ROM enhancement for each Game, as agreed by the
parties but owned exclusively by Sandbox subject to CNNSl's rights in and to
CNNSI Elements therein, featuring heavier use of graphics and animation and an
* Confidential information has been omitted and filed separately with the
Commission.
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enhanced prize structure ("CD-ROM Product"). All elements of the CD-ROM shall be
agreed upon by the parties in advance. This CD-ROM Product will be offered to
consumers during the Term and any Sell-Off Period (as hereinafter defined) for a
price and through outlets determined by mutual agreement of the parties. The
CD-ROM shall be subject to mutually agreed upon standards regarding both
substance and quality. Sandbox shall be solely responsible for the production of
any CD-ROM Game Product, including all creative and hard costs associated
therewith and all elements thereof, including securing any and all third party
rights and compliance with all applicable laws, rules and regulations. Without
limiting the generality of the foregoing, it is expressly understood and agreed
that Sandbox shall be solely responsible for compliance with 4 all sweepstakes
and gaming rules and regulations and any prize fulfillment activities and shall
indemnify and hold CNNSI harmless from any claims related thereto.
It is anticipated that such CD-ROM will be offered to consumers through
purchase opportunities on the CNNSI and Sandbox Sites, as well as through other
mutually acceptable channels; notwithstanding the foregoing, it is expressly
understood and agreed that CNNSI shall have no obligation whatsoever to sell (as
opposed to promote) CD-ROM Game Products to users directly from its Site through
secure transaction technology. Sandbox shall be solely responsible for all
duplication and packaging of the CD-ROM and all fulfillment and mailing costs.
Net revenue derived from sales of any CD-ROM Game Product, which shall be
defined as gross revenues, less actual cost of goods incurred by Sandbox, will
be split between Sandbox and CNNSI *. In addition, CNNSI agrees that Sandbox
shall be permitted to recoup from gross revenues its actual cost of providing
additional non-cash prizes on the CD-ROM before any payment of net revenues
hereunder, provided that the decision to provide the additional non-cash prizes
was mutually agreed upon in advance. It is expressly understood that no cash
prizes will be available. Should CNNSI contribute any content (X, CNNSI
Elements) to the CD-ROM, an additional amount payable to CNNSI shall be
negotiated by the parties in good faith, whether in the form of a fee or an
additional share of net revenue. Upon expiration of this Agreement, the parties
may continue to sell existing inventory of the most current CD-ROM for a period
not to exceed the earlier of the data three (3) months (i) after expiration, or
(ii) after the completion of the regular season for the sport subject of the
Game ("Sell-Off Period"). The foregoing right shall also apply to the
non-breaching party in the event of a termination.
During the Term and for a period of two (2) years thereafter, each
party shall maintain complete and accurate books and record relating to the sale
of any CD-ROM Game Product hereunder. Each party shall be responsible for
invoicing, billing and collecting all amounts in connection with its sales
* Confidential information has been omitted and filed separately with the
Commission.
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efforts and agrees to submit monthly payments to the other party within sixty
(60) days after the end of each calendar month, accompanied by an appropriate
and agreed upon statement.
8. Books and Records. As indicated in this Agreement, each party is responsible
for maintaining certain books and records in connection with its performance of
obligations hereunder. Such books and records shall be available to the other
party for inspection during reasonable business hours upon reasonable notice. In
addition, each party shall have a right to audit the other party's books and
records at its sole cost not more than one (1) time per twelve-month period.
Should such an audit reveal an underpayment to that party in the amount of ten
percent (10%) or more, such party shall be entitled to reimbursement for the
cost of its audit from the audited party.
9. Term. This Agreement shall be effective as of the date hereof and shall
continue through October 31, 1998, unless earlier terminated pursuant to the
terms hereof. This Agreement may be renewed for two (2) separate terms of one
year each thereafter by CNNSI at its sole discretion by notifying Sandbox (in
each event) on or prior to July 1, 1998 and 1999, respectively. Upon expiration
or termination of this Agreement, the co-branded offering will be disabled or
removed from public availability and all co-branding efforts related thereto
shall cease, subject to permitted Sell-Off Period activities as applicable; the
foregoing will not impose any broader obligation on Sandbox to disable its
"XxxxxxXxx.xxx" URL.
10. Warrants. Simultaneous with the execution of this Agreement, Sandbox hereby
agrees to issue CNNSI a warrant in the form of Exhibit "A" attached hereto
entitling CNNSI to acquire 20,000 shares of common stock in Sandbox subject to
the terms and conditions set forth therein.
11. Costs. Except as expressly set forth herein to the contrary, each party will
bear its respective costs incurred in the performance of this Agreement and
shall not be entitled to any reimbursement therefor from the other party.
12. Merchandising/Licensing. During the Term, the parties may discuss
merchandising and/or licensing opportunities related to the Games and Game Site.
Such opportunities may be exploited only pursuant to mutual agreement of the
parties. To the extent that the parties elect to pursue any such opportunities
and extend the co-branding activities contemplated under this Agreement, the
parties agree to split any such net revenues *. All opportunities, approval
rights, related economics (e.g., definition of net revenue) and other terms and
conditions applicable thereto, shall be set forth in a written amendment to this
Agreement and executed by both parties. Absent such an amendment, no
merchandising, licensing or other rights not
* Confidential information has been omitted and filed separately with the
Commission.
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expressly contemplated and addressed in this Agreement may be exploited by
either party.
13. Notices. All notices to the parties shall be given in writing and sent to
the addresses set forth above. A copy of any notice to CNNSI shall be
simultaneously delivered to CNNSI Interactive, Xxx XXX Xxxxxx, Xxx 000000,
Xxxxxxx, Xxxxxxx 30348- 5366, Attention: Xxxxx Xxxxx, with an additional copy to
Cable News Network, Inc., Xxx XXX Xxxxxx, Xxx 000000, Xxxxxxx, XX 00000-0000,
Attention: Xxxxx X. Xxxxx, Assistant General Counsel, Legal Department. A copy
of any notice to Sandbox shall be simultaneously delivered to Xxxxxx Xxxxxxx,
P.A., 0000 X. Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, Attention:
Xxxxxx X. Xxxxxx, Esquire.
14. Standard Terms and Conditions. CNNSI and Sandbox agree that the Standard
Terms and Conditions attached hereto as Exhibit "B" shall constitute an integral
part of this Agreement and are hereby incorporated into this Agreement. If any
provision set forth above conflicts (or is construed to conflict) with any
provision of the Standard Terms and Conditions, the provisions hereinabove set
forth shall control.
CNNSI, a division of Cable News SANDBOX ENTERTAINMENT
Network, Inc. CORPORATION
By:/s/ By:/s/ Xxxx X. Xxxxxx
--------------------------- --------------------------
Its: General Manager Its: President
------------------------- ------------------------
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EXHIBIT A
FORM OF WARRANT
[To be provided by Sandbox]
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EXHIBIT B
STANDARD TERMS AND CONDITIONS
B-1 OWNERSHIP. Sandbox acknowledges and agrees that the services rendered and
rights granted pursuant to the terms of this Agreement shall not confer in
Sandbox any rights of ownership in the CNNSI Page or in any CNNSI Elements,
CNNSI site or service or any part thereof (including, but not limited to, all
rights of copyright) which shall remain exclusively in CNNSI. CNNSI acknowledges
and agrees that the services rendered and rights granted pursuant to the terms
of this Agreement shall not confer in CNNSI any rights of ownership in the
Games, any technology or proprietary rights utilized by Sandbox in offering the
Games, or any Sandbox site or service or any part thereof (including, but not
limited to, all rights of copyright) which shall remain exclusively in Sandbox.
B-2 WARRANTY. Sandbox represents and warrants that (a) it shall not make any
representations to any third party or take any actions inconsistent with the
terms of this Agreement; (b) Sandbox has full power to enter into this
Agreement, to carry out its obligations hereunder and to grant/assign the rights
herein granted/assigned to CNNSI; (c) the Services provided hereunder shall be
performed in a good and workmanlike manner; (d) Sandbox shall use commercially
reasonable efforts to ensure the accuracy and integrity of the Games as
presented on the Game Site and any CD-ROM Product, and CNNSI's use of the same
in accordance with this Agreement and any applicable third party license agree
ments shall not infringe upon or violate the intellectual property rights,
including without limitation rights or publicity, copyright, trademark, trade
secrets or patent rights, of any person, firm or entity; and (e) Sandbox is in
the process of raising capital in a second venture financing round and expects
to have sufficient financing and other resources to fully perform its
obligations under this Agreement.
B-3 INDEMNIFICATION. Sandbox shall indemnify, defend and hold harmless CNNSI,
its parent and affiliated companies, its and their licensees, successors and
assigns, and each of its and their officers, agents and employees from all
liabilities or losses, including, without limitation, reasonable attorneys'
fees, arising out of any claims, lawsuits or judgments, whether threatened or
actual, fixed or contingent, known or unknown, arising out of the breach by
Sandbox of any representation, warranty or covenant of Sandbox under this
Agreement, the Games, any CD-ROM Product or operation of the Game Site. Sandbox
shall promptly inform CNNSI in writing of any such claim, demand or suit and
CNNSI shall fully cooperate in the defense thereof. CNNSI shall indemnify,
defend and hold harmless Sandbox, its parent and affiliated companies, its and
their licensees, successors and assigns, and each of its and their officers,
agents and employees from all liabilities or losses, including, without
limitation, reasonable attorneys' fees, arising out of any claims, lawsuits or
judgments, whether threatened or actual, fixed or contingent, known or unknown,
arising out of CNNSI's breach of any of its representations, warranties or
covenants to Sandbox hereunder, CNNSI's operation of the CNNSI Site and/or
inclusion of any CNNSI Elements in any Game, Game Site or CD-ROM Product. CNNSI
shall promptly inform Sandbox in writing of any such claim, demand, suit and
Sandbox shall fully cooperate in the defense thereof.
B-4 TERMINATION. In the event a party is in breach under this Agreement, the
other party may terminate this Agreement immediately if the breaching party
fails to cure the breach within thirty (30) days of its receipt of notice of
such breach. Upon any termination, neither party shall have any further
obligation to the other party except as expressly set forth herein or as
required in accordance with applicable law.
B-5 ASSIGNMENTS/SUBCONTRACTORS. Sandbox shall not have the right to sell,
assign, transfer or hypothecate (all hereinafter referred to as "assign" or
"assignment") this Agreement, or delegate any of Sandbox's obligations
hereunder, voluntarily or by operation of law, without the prior written consent
of CNNSI (which CNNSI may give or withhold in its sole discretion), provided
that CNNSI's consent shall not be required with respect to a transfer after the
closing of which the owners of Sandbox as of the date of this Agreement continue
to have voting control of Sandbox or the resulting entity (e.g., a reverse
merger in which Sandbox shareholders have the controlling share) so long as such
transfer does not involve a party reasonably considered a competitor to CNNSI.
Any such purported assignment or deletion without such prior written consent
shall be null and void and have no force and
Exhibit "B" - Page 1
effect. This Agreement shall be fully and freely assignable by CNNSI in whole or
in part. Sandbox shall have no rights whatsoever to subcontract any portion of
the Services required hereunder.
B-6 RELATIONSHIP. Sandbox's relationship to CNNSI shall be that of an
independent contractor. Nothing herein shall create any association,
partnership, joint venture or agency relationship between Sandbox and CNNSI.
Without limiting the generality of the foregoing, it is expressly understood and
agreed that Sandbox shall have no authority whatsoever to make any
representations or commitments to or enter into any agreements with any third
party on behalf of CNNSI.
B-7 TAXES. Except as otherwise expressly provided in this Agreement, Sandbox
agrees to pay the full amount of any and all taxes, levies or charges (including
without limitation, any penalties or interest thereon) howsoever denominated,
imposed or levied against Sandbox or CNNSI by any law, rule or regulation now in
effect or hereafter enacted including without limitation, sales, use, property
and excise or other similar taxes, licenses, import permits or fees, and customs
duties relating to or imposed upon the Services provided hereunder, the use or
possession of same by CNNSI, or the amounts payable to Sandbox under this
Agreement, it being the intent hereof that the amounts payable to Sandbox under
this Agreement, except as otherwise expressly provided herein, shall be
inclusive of any and all taxes, levies, or charges of whatsoever kind or nature
howsoever denominated. Notwithstanding the foregoing, CNNSI will remain solely
responsible, and Sandbox shall have no responsibility for, taxes on CNNSI's net
income.
B-8 CONFIDENTIALITY. Each party acknowledges that it may have access to certain
trade secrets and other non-public confidential information of the other during
and in connection with its performance of services and/or obligations hereunder
("Confidential Information"), and hereby agrees not to disclose any Confidential
Information to any third party and not to use any such Confidential Information
for any purpose other than performance pursuant to this Agreement. All such
Confidential Information and trade secrets are and shall remain the exclusive
property of the disclosing party and no license shall be granted or implied with
respect to such Confidential Information or trade secrets by reason of the other
party's access to the same in connection with its performance of services or
obligations hereunder. The parties' foregoing agreement of non-use and
nondisclosure shall survive any termination or expiration of this Agreement and
shall continue in full force and effect for a period of three (3) years from the
date of the Agreement. It is expressly understood and agreed that the terms and
conditions of this Agreement shall be deemed Confidential Information of the
parties and will not be disclosed to any third party (other than a party's
investors or bona fide potential investors, lenders, accountants, attorneys and
other advisors, provided that such disclosures are on a confidential basis)
without the prior written consent of both parties. Confidential Information
shall not include information in the public domain or information which a party
acquires from a third party who provides the same without violating any
obligation of confidentiality or nondisclosure. Furthermore, it shall not be
deemed to be a violation of this provision for a party to disclose any
Confidential Information to a judicial or governmental authority compelling such
disclosure by appropriate order provided that the party receiving any such order
shall provide the other party with notice at the earliest practicable moment to
permit the other party to seek appropriate protective orders, if it so elects.
B-9 NOTICES. All notices under this Agreement or with respect thereto shall be
in writing and deemed received when delivered personally, by express courier
service (i.e., Federal Express, DHL, etc.) or by telefaxing to the addresses set
forth herein, assuming the sender retains some confirmation of delivery. All
notices mailed through the U.S. mail, postage pre-paid, first class, to the
addresses set forth herein shall be deemed received the third business day after
deposit in the U.S. mail.
B-10 FURTHER DOCUMENTS. Each party agrees to execute, deliver and/or file any
and all further instruments which the other party may deem necessary to carry
out the purposes of this Agreement.
B-11 PUBLICITY. Each party shall have the right to reference this Agreement and
the relationship established hereby and use the other party's name in publicity
and press materials related to its Site; however, any use of the other party's
trademarks or logos in such materials will be subject to such other party's
prior written approval, not to be unreasonably withheld.
Exhibit "B" - Page 2
B-12 MISCELLANEOUS PROVISIONS
a) Severability. In the event any provision of this Agreement shall be
found to be contrary to any law or regulation of any federal, state or municipal
administrative agency or body, the other provisions of this Agreement shall not
be affected thereby but shall notwithstanding continue in full force and effect.
b) Attorney's Fees. If any legal action or other proceeding is brought
with respect to the subject matter of this Agreement, its enforcement or as a
result of a breach, default or misrepresentation in connection with any of the
provisions of this Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorneys' fees and other costs incurred in such
action or proceeding, in addition to any other relief to which such party may be
entitled.
c) Non-Waiver. No waiver by either party hereto of any breach or
default by the other party shall be construed to be a waiver of any other breach
or default by such other party. Resort to any remedies referred to herein shall
not be construed as a waiver of any other rights and remedies to which either
party is entitled under this Agreement or otherwise, nor shall an election to
terminate be deemed an election of remedies or a waiver of any claim for damages
or otherwise.
d) Entire Agreement. This Agreement constitutes the entire
understanding between the parties with respect to the subject matter hereof and
all prior understandings, whether oral or written, have been merged herein and
are superseded hereby. This Agreement may not be altered or modified except in
writing signed by both parties hereto. Without limiting the foregoing, it is
specifically agreed that no terms contained on any payment documentation
(regardless of origin) such as invoices, purchase orders, etc., shall in any way
effect the terms of this Agreement.
e) Governing Law. Regardless of the place of execution or performance,
this Agreement shall be governed, construed and enforced in accordance with the
laws of the State of Georgia applicable to agreements entered into and to be
wholly performed therein, and Sandbox hereby consents and agrees to the
nonexclusive jurisdiction of the courts of the State of Georgia and United
States courts located in the State of Georgia in connection with any suit,
action or proceeding brought by Sandbox arising out of or related in any manner
to this Agreement. Each party agrees that service of process by registered mail
return receipt shall be effective service of the same for purposes of enforcing
rights under this Agreement and that such service shall have the same effect as
personal service within the State and result in jurisdiction over the party in
the appropriate forum.
f) Third Party Beneficiaries. This Agreement is not for the benefit of
any third party and shall not be deemed to give any right or remedy to any third
party whether referred to herein or not.
g) Headings. Paragraph headings as used in this Agreement are for
convenience only and are not a part hereof, and shall not be used in any manner
to interpret or otherwise modify any provision of this Agreement.
h) Effectiveness. This Agreement shall not be effective until fully
executed and delivered by the duly authorized representatives of both parties
hereto.
i) Survival. All representations, warranties and indemnities shall
survive the execution, delivery, suspension, expiration and/or termination of
this Agreement or any provision hereof.
END OF STANDARD TERMS
---------------------
AND CONDITIONS
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Exhibit "B" - Page 3
SCHEDULE 1
CONTRACTOR GAMES/SERVICES
The parties agree that the functionality and quality for each Game
shall be determined by the mutual agreement of the parties; however, it is
expressly agreed that the football, basketball (professional and, as applicable,
college version) and baseball Games will have a minimum of 2 to 3 tiers of core
games, targeting the hard-core fantasy gamer as well as the interested but less
committed player. The number and complexity of hockey and golf tiers will be
determined by mutual agreement of the parties taking into account market
acceptance of those Games. Additional games, featuring advertiser site
integration may be developed by mutual agreement of the parties for distribution
to Site users; such additional games, if any, will be considered "Games" for
purposes of this Agreement.
Sandbox will provide all necessary functionality for each Game,
including without limitation, online team selection, team scoring summaries,
team rankings, league management, community management and rules and
regulations. Sandbox will guarantee continuous functionality of all elements of
each Game and will ensure the scalability of the infrastructure to handle
increased and significant traffic generated by the Site.
As between Sandbox and CNNSI, Sandbox shall be responsible for securing
any and all rights and making all payments necessary for the development and
distribution of the final Games as contemplated hereunder, including without
limitation, any rights required by the appropriate players' associations,
leagues, individuals and governing bodies. In addition, as and to the extent
approved by both parties, should any Game involve a contest, sweepstakes, prize,
fulfillment and/or similar elements, Sandbox shall assume sole responsibility
and liability therefor. Without limiting the generality of the foregoing, such
responsibility shall incur securing all prizes and performing all functions and
taking all actions necessary to ensure compliance with applicable laws, rules
and regulations (e.g., development and filing of applicable rules, payment of
fees, registrations, posting of any bonds, fulfillment, etc.).
By mutual agreement, the parties may elect to charge users of the Game
Site a fee for certain elements of the Game (e.g., a fee payable for teams
beyond the initial team selection generally available for each Game). If any
such fee is assessed on users, the parties shall split all net revenue derived
therefrom, *, with Sandbox responsible for establishing and operating a mutually
agreeable online payment and collection system. Should such a subscription model
result in additional fees payable to any third party content provider for the
Game Site, such fees shall be approved in advance by both parties and deducted
from gross subscription revenues before calculating and paying the net amount.
* Confidential information has been omitted and filed separately with the
Commission.
