EXHIBIT 10.7
--------------------------------------------------------------------------------
Neither party shall be bound by any agreement in whole or in part unless and
until this document is executed and delivered by both parties.
This document is otherwise intended for discussion purposes only.
--------------------------------------------------------------------------------
:CRQ-TM- :Cue-TM-
BROADCAST STATION AND CABLE CHANNEL AGREEMENT
THE PARTIES TO THIS AGREEMENT ARE:
--------------------------------------------------------------------------------
("DCCI") ("BELO")
--------------------------------------------------------------------------------
DIGITALCONVERGENCE.:COM INC. BELO INTERACTIVE, INC.
000 Xxxxx Xxxxxx 000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000 Xxxxxx, Xxxxx 00000
Phone 000 000 0000 Phone 000 000 0000
Fax 000 000 0000 Fax 000 000 0000
Attn: Xxxx X. Xxxxxx Attn: Xxxxx X. Xxxxxxx, III
Executive Vice President, Media Group President
xxxxxxx@xxxxxxxxxxxxxxxxxx.xxx
--------------------------------------------------------------------------------
- PRINCIPAL TERMS -
This :CRQ-TM- :Cue-TM- Broadcast Station Agreement and Cable Channel
agreement (the "Agreement") between DCCI and Belo (the "PARTIES") is dated as of
April 4, 2000 and, upon execution by both Parties, shall bind them in accordance
with the terms and conditions of these Principal Terms and the General that are
annexed below and made a part of this Agreement. Capitalized terms not defined
in the Principal Terms or the Annex of Definitions attached hereto as Exhibit I,
which is incorporated by reference, are defined in the General Terms.
A. As used in this Agreement:
1. "TERM" means the period beginning as of August 1, 2000 and
continuing for eighteen (18) months thereafter, subject to all
provisions below. Belo has the right to renew the Term for a
consecutive additional eighteen (18) month period ("FIRST
RENEWAL PERIOD") as follows: Beginning ninety (90) days before
the end of the Term, the Parties will negotiate in good faith
the economic terms of the license for the Renewal Period for
up to sixty (60) days. DCCI will offer to Belo economic terms
for such Renewal Period for each of its Belo Stations,
Station-by-Station, on a most-favored-nations basis with any
other free over-the-air local television stations and local
basic cable channel or program service then under license from
DCCI for the :CRQ :Cue Technology in comparable market areas
to those in which such Belo Stations are located. For purposes
of the prior sentence, unless otherwise agreed by the Parties,
the Parties will compare one Belo Television Market to another
station market with reference to the cost per rating point in
the respective markets. Provided the Parties extend the Term
for a particular Belo Station for the First Renewal Period,
Belo shall have the right to extend the Term for such Belo
Station for a second consecutive Renewal Period of eighteen
(18) months ( the "SECOND RENEWAL PERIOD") under the same
procedure above as for the First Renewal Period.
1
2. "MARKETS" shall mean the Belo Cable News Markets and the Belo
Television Markets, as specified in the fee table set forth as
Exhibit II, which is incorporated by reference, as amended
from time to time by the written mutual agreement of the
Parties (the "FEE TABLE") to reflect new Belo Television
Stations and new Belo Cable News Channels. The "BELO CABLE
NEWS MARKETS" are the urban region or state, as applicable,
specified for each Belo Cable News Channel in the Fee Table.
The "BELO TELEVISION MARKETS" shall refer to the Designated
Market Area ("DMA") for a Belo Television Station, as defined
by Xxxxxxx Media Research, Inc. and set forth in the Fee
Table.
B. FEE. As a condition to performance of DCCI's obligations under
this Agreement, Belo shall pay DCCI either (i) the Fixed Annual License Fee or
(ii) the Per Commercial :Cue Fee (the "FEE") set forth in the Fee Table;
PROVIDED, HOWEVER, that DCCI shall xxxx and accept payment by the applicable
Belo Station if such Belo Station has agreed in writing to make all required
payments to DCCI in accordance with the terms of this Agreement, failing such
agreement Belo will be responsible for all such payments. The Fee is payable as
provided further below in this paragraph. The foregoing notwithstanding, Belo
shall have the right prior to the commencement of the Term to telecast Content
and Promotional :Cue's free of charge in a beta environment subject to mutual
approval by Belo and DCCI with respect to the procedure for such telecasts.
Except where stated "Not Applicable" in the attached Fee Table, Belo
will have a one-time election between the Fixed Annual License Fee and the Per
Commercial :Cue Fee arrangement, of which it will notify DCCI in writing by June
1, 2000, failing which Belo will be deemed to have elected the Fixed Annual
License Fee. The Per Commercial :Cue Fees in the attached Fee Table are for
Prime Time telecasts; non-prime time Per Commercial :Cue Fees are half of the
applicable prime-time fees. Notwithstanding the immediately preceding sentence,
if Belo, in its sole discretion, elects to treat its two (2) television station
Affiliates in Phoenix, Arizona (stations KTVK and KASW) as a single station for
purposes of the exclusivity provisions set forth in Paragraph D of the Principal
Terms (and Belo has elected to do so in relation to any license DCCI grants to a
Scripps station; i.e., Belo consents to DCCI licensing to such Scripps station),
the Fixed Annual License Fee and Per Commercial :Cue Fee applicable to KASW
shall be one-half that reflected on the Fee Table. There will be no charge for
(i) Commercial :Cues incorporated and telecast in the first three (3) months
following the Launch Date; (ii) Commercial :Cues that constitute "make good"
:Cues as provided in Section 7 of the General Terms; and (iii) Commercial :Cues
sold to Launch Partners of DCCI that are subject to the separate payment
provisions set forth in Paragraph D of the Principal Terms provided all payments
required pursuant to Paragraph D (including without limitation Paragraph D(3)
below) have been made. Under both Fee arrangements above, there is no additional
charge for Content and Promotional :Cue usage.
During the eighteen (18)-month period of the Term commencing August 1,
2000 (the "INITIAL PAYMENT PERIOD") (without regard to any permitted extensions
of such Term), Belo will be required to pay the applicable Fixed Annual License
Fee in equal monthly installments at the beginning of each month of the Initial
Payment Period. Notwithstanding the immediately preceding sentence, if the
Launch Date does not occur on or before September 1, 2000 and Belo shall have
elected or deemed to have elected to pay the Fixed Annual License Fee, then Belo
shall automatically be switched to the applicable Per Commercial :Cue Fee until
such time as the Launch Date occurs, whereupon Belo shall return to the Fixed
Annual License Fee payment schedule, pro rated for the remainder of the Term.
The foregoing shall be Belo's sole and exclusive remedy for any failure of the
Launch Date to occur by September 1, 2000. During the First and Second Renewal
Periods, if any, the new applicable fixed annual license fee (as mutually agreed
by the parties) will apply to each twelve (12)-month period during such Renewal
Periods (i.e., such mutually agreed license fee will be paid over twelve (12)
months and not over eighteen (18) months, as is the case with the Initial
Payment Period only). The Per Commercial :Cue Fee will be payable for each
Commercial :Cue telecast during the Term and according to
2
the accounting and payment terms specified in the General Terms below. The Fee
shall not be reduced if Belo transmits fewer than the Permitted Number of :Cues.
The Per Commercial :Cue Fee rates reflected on the Fee Table are based on thirty
(30) second commercial spots and will be prorated up and down for commercials of
different duration. Belo shall not be entitled to receive compensation from
third parties for telecasting Content :Cues or Promotional :Cues that link to
third party websites unless the parties mutually agree in writing to a revenue
sharing arrangement as set forth more fully in Paragraph 2 of the General Terms.
C. BELO PROMOTIONAL REQUIREMENTS. Belo shall place the DCCI Icon
and mutually approved explanatory text on the Belo-Related Linked Websites, and
shall use commercially reasonable efforts to have such DCCI Icon and mutually
approved explanatory text placed on the Non-Belo Linked Websites on terms to be
mutually agreed by the parties. The DCCI Icon, when activated, will allow a user
to download the :CRQ Software to such user's personal computer. Belo shall place
the DCCI Icon on pages not more than one click away from the home pages of all
Belo-Related Linked Websites. Belo shall use commercially reasonable efforts to
arrange for the DCCI Icon to be placed on pages not more than one click away
from the home pages of all websites other than Belo-Related Linked Websites with
which Belo is affiliated or has a financial or other interest ("AFFILIATED
WEBSITES"); provided, that if any such Affiliated Website declines to place the
DCCI Icon not more than one click away from its home page, then such other
Affiliated Website shall not be entitled to place the DCCI Icon on its site,
unless DCCI authorized placement of the DCCI Icon thereon. Each Belo Station
shall provide a mutually agreed number of on-air mentions in support of the :CRQ
:Cue Technology and promoting the download of the :CRQ :Cue Technology. Each
Belo Station shall further provide advertising at no cost to DCCI in support of
the :CRQ :Cue Technology on a schedule and in an amount to be determined by the
parties. Without limitation of the foregoing, the Belo Stations shall use
reasonable efforts to otherwise promote the :CRQ :Cue Technology and use Content
:Cues and Promotional :Cues, including, but not limited to, on-air GRP
commitments, off-air support and an overall unified branding strategy, the
details of which will be negotiated by the Parties in good faith. Belo shall use
commercially reasonable efforts to encourage all Belo Stations to promote the
:CRQ :Cue Technology and use Content :Cues and Promotional :Cues. DCCI will
furnish Belo with the :CRQ Software in the form of a CD-ROM, which :CRQ Software
Belo shall make available to users for download from the Belo-Related Linked
Websites and Affiliated Websites on which the DCCI Icon appears, provided that
Belo shall make such software available in such a manner that on-line consumer
response does not exceed the on-line infrastructure capacities of the applicable
website. In the event that any Belo-Related Linked Website propagates the
download or the installation of :CRQ Software at that site, DCCI shall provide
to Belo prominent exclusive positioning on the face (i.e., the window or frame
in the center of the player) of those players downloaded from such Belo-Related
Linked Websites and Affiliate Websites displayed in connection with DCCI's
Virtual Network, as to be negotiated by the Parties in good faith.
D. LICENSE GRANT AND EXCLUSIVITY. Subject to the terms and
conditions of this Agreement, DCCI hereby grants to the Belo Stations a
non-transferable, limited exclusive license and right up to and during the Term
and solely in the Belo Markets to use the :CRQ :Cue Technology in order to
effectuate the transmission of :Cues as contemplated in this Agreement, subject
to the following terms:
1. TELEVISION EXCLUSIVITY: Belo Television Stations shall have
the exclusive right to use the :CRQ :Cue Technology in locally
produced or originated programming (i.e., as distinguished
from network or nationally syndicated programming) in free
over-the-air telecasts in the Belo Television Markets as
against all other free over-the-air broadcast television
stations in such market, and DCCI shall not license or allow
such other stations to telecast :Cues in their locally
produced or originated television programming within each of
the Belo Television Markets, PROVIDED, HOWEVER, that if only
one Belo Television Station serves a Belo Television Market,
DCCI shall have the right to license the :CRQ :Cue Technology
to one other free, over-the-air
3
broadcast television station in the Belo Television Market (an
"OTHER PERMITTED LICENSEE"), but subject to the limitation
that if the Belo Television Station in that Market is an ABC,
NBC or CBS affiliate, the Other Permitted Licensee must
constitute a FOX, UPN or WB affiliate. If the Belo Television
Station is not an ABC, NBC or CBS affiliate, DCCI may license
to any Other Permitted Licensee.
Solely for purposes of determining whether DCCI shall have
the right to license the :CRQ :Cue Technology to another
licensee in a Belo Television Market, the two Belo
Television Stations serving the Seattle/Tacoma DMA (KING
and KONG), the Spokane, Washington DMA (KREM and KSKN), and
the Tucson, Arizona DMA (KMSB and KTTU) shall be treated as
a single Belo Television Station. The two (2) Belo
Television Stations serving the Phoenix, Arizona DMA (KTVK
and KASW) shall be treated as a single Belo Television
Station only upon the written election of Belo, in its sole
discretion; provided, however, that Belo hereby agrees to
treat KTVK and KASW as a single station for purposes of the
exclusivity provision in the Phoenix, Arizona DMA to the
extent the Other Permitted Licensee in such Market
constitutes KNXV-TV, Channel 15, owned by the X.X. Xxxxxxx
Company. The fact that Belo Television Stations are treated
as a single station for purposes of the exclusivity
provisions shall not reduce the Permitted :Cues or the
Minimum :Cues for each such station under subparagraphs 4
and 5 of this Paragraph D, respectively. If DCCI licenses
to another television station in the Phoenix, Arizona DMA
(Belo shall be deemed to consent to DCCI's licensing to any
Scripps station), then the KASW Fee as set forth in the
attached Fee Schedule shall be $87,500 as the Fixed Annual
License Fee or $87.50 as the Per Commercial :Cue Fee, if
applicable, which adjustment shall be effective as of the
beginning of the Initial Payment Period.
2. CABLE EXCLUSIVITY: Belo Cable News Channels shall have the
exclusive right to use the :CRQ :Cue Technology for locally
produced or originated programming in the Belo Cable Markets
as against all locally produced or originated programming by
local basic cable television news channels and program
services in such markets and cable systems selling :Cues in
their local advertising availabilities.
3. SUBLICENSING RIGHTS: Belo's exclusivity includes the right to
sublicense to local advertisers the right to incorporate
Commercial :Cues in each such local advertiser's commercials
which are telecast in locally produced or originated
programming on (i) other free over-the-air broadcast
television stations in Belo's Television Markets and (ii)
local or regional basic cable television news channels or
program services in Belo's Cable News Markets, from such
respective station's or basic cable news channel or program
services' local inventory of commercial advertising time
(which exclusivity shall apply even as against DCCI in the
applicable Belo Markets, except as otherwise specified in
Paragraph 3 below regarding the Launch Partners and Other
Permitted Licensees) for telecasting Commercial :Cues within
the scope of the licenses granted to the Belo Stations in
subparagraphs 1 and 2 of this Paragraph D, but only under the
following circumstances:
(a) Belo shall only have the right to permit
advertiser Commercial :Cues to be telecast
on free over-the-air broadcast television
stations in Markets in which Belo has Belo
Television Stations or on local or regional
basic cable news channels or program
services in Markets in which Belo has Belo
Cable News Channels.
4
(b) from August 15, 2000 through December 31,
2000, Belo Stations may sublicense to not
more than ten (10) national strategic
advertiser launch partners (e.g., Coca Cola)
selected by DCCI and referred to Belo (each
selected national advertiser being referred
to herein as a "LAUNCH PARTNER") the right
to telecast Commercial :Cues on other free
over-the-air broadcast television stations
in Belo's Markets and local or regional
basic cable television news channels or
program services in Belo's Markets. If DCCI
refers one or more Launch Partners to Belo,
Belo shall have one (1) week from the date
of each referral for each Launch Partner to
determine whether to sublicense to such
Launch Partner. If Belo elects to sublicense
to such Launch Partner, Belo shall pay DCCI
the Commercial :Cue rate for the applicable
market, and Belo and DCCI shall share the
excess as specified below in this paragraph.
In the event Belo elects not to sublicense
to such Launch Partner DCCI has referred to
Belo, then DCCI shall have the right to sell
Commercial :Cues directly to each such
Launch Partner in the Belo Stations'
respective Markets and any other market,
which right shall continue for the remainder
of the Term.
(c) during the Term of this Agreement, Belo
Stations may sublicense to advertisers the
right to run Commercial :Cues on other free
over-the-air broadcast television stations
and local or regional basic cable television
news channels or program services in Belo's
Markets for such stations' or such basic
cable news channels or program services'
local advertisers selected in the sole
discretion of such Belo Station (other than
Other Permitted Licensees).
(d) Belo shall use reasonable commercial efforts
to ensure that Belo's sublicensing of the
:Cues does not unreasonably interfere with
DCCI's ability to license :Cues
to Other Permitted Licensees.
(e) Belo shall impose on any advertiser to whom
it sublicenses rights hereunder the same
requirements and restrictions that Belo is
required to impose or elects to impose on
advertisers telecasting :Cues on Belo
Stations (including, by way of example only,
restrictions on obscene or infringing
content, etc.). Belo shall obtain from each
permitted sublicensee all information
regarding when sublicensed :Cues are
telecast, the frequency with which such
:Cues are telecast, the permitted television
stations or cable news channels or program
services on which such :Cues are telecast
and the price paid and received for each
such :Cue. Belo shall furnish DCCI with all
of the foregoing information in accordance
with the reporting provisions set forth
herein. Belo shall ensure in any sublicense
that it retains the right to audit the
applicable books and records of each
sublicensee, on its behalf and on behalf of
DCCI.
With respect to :Cues telecast on other free
over-the-air broadcast television stations the
Commercial :Cues shall be sublicensed for a price per
:Cue (the "SUBLICENSE FEE") no less than the Per
:Commercial :Cue Fee that a Belo Television Station
in the applicable Market would pay DCCI for the same
Commercial :Cue during the Term of this Agreement.
With respect to :Cues telecast on other local or
regional basic cable news channels or program
services, the Commercial :Cues shall be sublicensed
for a price per :Cue no less than the fair market
value of such Commercial :Cues as negotiated by Belo
5
on an arms-length basis and approved by DCCI (such
approval not to be unreasonably withheld).
With respect to :Cues telecast on other free
over-the-air broadcast television stations, the
sublicensing Belo Television Stations shall pay DCCI,
with respect to each sublicensed Commercial :Cue, an
amount equal to the applicable Per Commercial :Cue
Fee plus fifty percent (50%) of the gross amount that
the Sublicense Fee exceeds the Per Commercial :Cue
Fee without any other deduction or offset by Belo
according to the accounting and payment terms
specified in the General Terms. With respect to :Cues
telecast on other local or regional basic cable news
channels or program services, the sublicensing Belo
Cable News Channel shall pay DCCI, with respect to
each sublicensed Commercial :Cue, an amount equal to
fifty percent (50%) of the gross amount received by
such Belo Cable News Channel without any other
deduction or offset by Belo according to the
accounting and payment terms specified in the General
Terms.
4. PERMITTED :CUES: For Commercial :Cues, each Belo Station is
permitted to telecast Commercial :Cues in an amount equal to
two (2) per half-hour of non-network programming not counting
(a) Commercial :Cues that constitute "make good" :Cues to
which a Belo Station is entitled pursuant to Section 7 of the
General Terms, (b) unauthorized :Cues as described in
subparagraph 6 below, and (c) sublicensed Commercial :Cues
granted under subparagraph 3 above. Notwithstanding the
foregoing, if for any calendar month beginning more than
thirty (30) days following the Launch Date, a Belo Station
fails to telecast Content :Cues during such calendar month
that would result in an average telecast of two (2) Content
:Cues per day for the entire calendar month (the "MONTHLY
MINIMUM"), then: (i) deficits in Content :Cues shall be
carried forward to subsequent calendar months and accumulate;
(ii) until such time, if ever, as each Belo Station shall
reach the Monthly Minimum, factoring in the deficits carried
forward from previous calendar months, such Belo Station shall
have the right to telecast a maximum of only one Commercial
:Cue for each Content :Cue telecast; and (iii) thereafter, the
Permitted Number of Commercial :Cues for such Belo Station
shall be calculated without regard to the limitation set forth
in the immediately preceding sentence so long as the Monthly
Minimum continues to be satisfied. The Monthly Minimum
obligation shall commence on the date the applicable Belo
Station, regardless of whether a Belo Television Station or
Belo Cable News Channel, telecasts its first :Cue. There is no
limitation on the number of Promotional :Cues and Content
:Cues that Belo Stations can telecast during the Term in their
programs, provided that Belo shall generally choose its level
of promotion and content usage such that on-line consumer
response does not exceed the on-line infrastructure capacities
of the respective Belo Stations, Belo-Related Linked Website.
There shall be no cross-collateralization (i.e., deferring,
crediting, etc.) between or among Belo Stations and/or between
or among kinds and number of :Cues, programming half- hours or
days, as applicable.
5. MINIMUM :CUES: Respecting Commercial :Cues charged on a
per-use basis, Belo will pay DCCI for a minimum of two (2)
Commercial :Cues per day (the "MINIMUM") for each Belo
Television Station at the non-prime time rate for such Belo
Television Station during the Term commencing three (3) months
after the Launch Date. Belo shall pay such Minimums regardless
of the number of :Cues actually telecast, but such Minimums
shall be creditable against the Per Commercial :Cue Fee
payable for :Cues actually telecast during each month without
credit for prior or subsequent months.
6
6. UNAUTHORIZED :CUES: Belo will provide in its agreements with
advertisers that, without limiting any other rights or
remedies, if an advertiser telecasts or otherwise exploits a
:Cue beyond the terms of its license with Belo or its
representative that the advertiser will pay, in addition to
the spot rate charged for commercials containing authorized
:Cues, a penalty equal to ten percent (10%) of the spot rate
for the commercial in which the :Cue was telecast as
liquidated damages, which penalty will be divided equally
between Belo and DCCI.
7. NEW BELO STATIONS: If during the Term, Belo acquires a
television station in a new DMA, or a basic cable television
news channel or program service in a new locality, the new
Belo Station will have licensing rights under this Agreement,
to the same extent as other Belo Stations, provided: (i) any
additions of Belo Stations shall be subject to the terms of
this Agreement, (ii) the Parties are able to agree on License
Fees for such additional Belo Stations, and (iii) the addition
of any such Belo Stations does not put DCCI in default of a
third party agreement or otherwise expose DCCI to any third
party liability.
8. COMMERCIAL :CUES DIRECTED TO SPECIFIC DEMOGRAPHICS: If, during
the Term, DCCI develops and commercially deploys the ability
to direct viewers to a specific website tailored to such
viewer based on his/her demographic profile, then DCCI shall
make such technology available to Belo. The premium over the
standard fees payable by Belo to DCCI for such targeting
technology shall be mutually agreed upon by the Parties, but
shall not exceed fifty percent (50%) of the fees set forth in
this Agreement.
E. TRADEMARKS. Subject to the terms and conditions of this
Agreement, DCCI hereby grants to the Belo Stations a non-transferable,
non-exclusive limited license and right during the Term throughout the world
to use the DCCI Icon on Belo-Related Linked Websites and Affiliated Websites,
as well as other mutually approved Non-Belo Related Websites, and the DCCI
Marks to advertise and promote the :CRQ :Cue Technology. Also, subject to the
terms and conditions of this Agreement, Belo hereby grants to DCCI a
worldwide, royalty free, fully paid-up, non-exclusive, non-transferable
license to use, reproduce and display the Belo Marks and Belo Links solely in
connection with (i) DCCI's Virtual Network and the advertising and promotion
thereof, (ii) the advertising and promotion of the :CRQ :Cue Technology, and
(iii) other uses set forth in this Agreement, provided that Belo shall have
final right of approval over the use of the Belo Marks and Belo Links in
connection with such use and such approval shall not be unreasonably
withheld, delayed or conditioned, it being understood that such approval
shall be applied to DCCI no less favorably than to any other third party.
Belo shall use commercially reasonable efforts to furnish DCCI with
pre-approvals in connection with DCCI's use of the Belo Marks and Belo Links
as soon as possible but in no event later than sixty (60) days before July 1,
2000. Without limitation of the foregoing,
(1) Belo further authorizes DCCI to cause DCCI's Virtual
Network to appear on and in connection with
Belo-Related Linked Websites, and warrants and
represents that it has
the right to do so;
(2) Belo agrees that the Belo Stations shall not direct
:Cues to any Non-Belo Linked Websites unless (a) Belo
first has delivered to the party or parties that own
and control such Non-Belo Linked Website a standards
and practices fact sheet, prepared by DCCI,
describing such :Cues, that shall include the
appearance of DCCI's Virtual Network on and in
connection therewith, and giving such party a
reasonable opportunity to object, and (b) Belo has
used reasonable commercial efforts to obtain an
explicit written authorization
7
from such party for DCCI to cause DCCI's Virtual
Network to appear on and in connection with such
Non-Belo Linked Website; and
(3) Both Parties agree that, if Belo complies with the
foregoing, then to the extent that either party
incurs any liability, cost or expense in connection
with the appearance of DCCI's Virtual Network on and
in connection with any Non-Belo Linked Website, both
Parties shall contribute to each other such that such
liability, cost and expense is shared
equally.
F. MOST FAVORED NATIONS. Notwithstanding any other provision
of this Agreement, (i) the economic terms of the licenses to use and
sublicense to local advertisers the :CRQ :Cue Technology granted to Belo and
each of its Belo Stations under this Agreement shall be provided to the Belo
Stations, prospective as of the date of the applicable third party agreement:
(a) with respect to Belo Television Stations, on a most favored nations basis
with (I) any other free, over-the-air broadcast television station in the
applicable Belo Television Market and (II) any free, over-the-air broadcast
television stations in a comparable market to the applicable Belo Television
Market (as determined in accordance with Paragraph A(i) of the Principal
Terms) that is part of a free over-the-air broadcast group licensing
agreement with DCCI; and (b) with respect to Belo Cable News Channels, on a
most favored nations basis with local or regional basic cable channels and
program services in the respective Markets of such Belo Cable News Channels
(i.e., on a channel-by-channel or program service-by-program service basis);
(ii) during the Term of this Agreement, Belo Television Stations and Belo
Cable News Channels will be entitled to use and sublicense the :CRQ :Cue
Technology on terms and conditions no less favorable than those applicable to
NBC Stations serving Belo Markets or comparable markets (as determined in
accordance with Paragraph A(i) of the Principal Terms), and the Belo Stations
shall automatically and without any further action be granted the benefit of
such more favorable terms and conditions, and this Agreement shall be deemed
amended to reflect such more favorable terms and conditions on a prospective
basis. DCCI agrees to notify Belo in writing in the event DCCI enters into
any agreement with a third party in a Belo Market (including an NBC Station)
that contains terms and conditions more favorable than those applicable to
the Belo Station in such Market. The foregoing notwithstanding: (i) Belo
shall not be on a most favored nations basis with respect to access to
Personal Data in connection with any third party agreement; and (ii) Belo's
right to sublicense to local advertisers shall be on a most favored nations
basis only relative to other stations in comparable markets (as set forth
above) selling to local advertisers.
G. DCCI MARKETING AND PROMOTION SUPPORT. In support of Belo's
marketing and promotion of DCCI's technology under this Agreement, DCCI will
provide to Belo free of charge: (1) on-air radio and television spots; (2)
artwork for incorporation into advertising layouts for use in TV Guide and
newspapers; (3) customary sales and marketing support materials that DCCI may
provide Belo from time to time; and (4) deployment by DCCI of a national,
branding campaign of DCCI's technology, including, without limitation,
DCCI-funded introductory parties at each Belo location, what DCCI intends
will be an approximately $20 million national media campaign and other public
relations/promotional support. DCCI shall also provide technical support and
services in accordance with the DCCI Service Levels attached as Exhibit III
hereto, which is incorporated herein by reference; PROVIDED, HOWEVER, that if
at any time DCCI provides more favorable service level guarantees to any
other user of the :CRQ :Cue Technology, then the Belo Stations shall
automatically and without any further action be granted the benefit of such
more favorable service levels, and Exhibit III shall be deemed replaced by
such more favorable service levels.
8
H. DATA RIGHTS. The following terms shall apply to the ownership
of and access to :CRQ User Data and :Cue User Data:
1. DATA OWNERSHIP. All aggregated :CRQ User Data (that is not
Personal Data) will be jointly owned by DCCI and Belo. To the
extent any right, title or interest in or to any such
aggregated user data vests, by operation of law or otherwise,
in either Party, such Party shall, and hereby does,
irrevocably assign to the other Party a one-half, undivided
interest in and to any and all such right, title and interest
therein. Belo shall comply with DCCI's privacy policies;
provided, that DCCI shall not make any changes to such privacy
policies in bad faith in order to defeat Belo's rights to data
under this Agreement. All other data, including, without
limitation, :Cue User Data and any Personal Data shall be
owned exclusively by DCCI.
2. ACCESS TO :CRQ USER DATA: During the Term, DCCI shall provide
Belo with copies of all of aggregated :CRQ User Data (that is
not Personal Data) on a monthly basis via the delivery method
and in the format generally used by DCCI to provide data and
information to its other partners. The Parties shall work
together to ensure that Belo is able to access and interpret
such aggregated data in a cost effective manner.
3. ACCESS TO AGGREGATED DATA. Without limiting the foregoing,
DCCI shall provide Belo with copies of all aggregated data
(but not any Personal Data associated therewith) collected by
DCCI during the Term with respect to all registered users of
the :CRQ Software who have received a :Cue from Belo Stations
during the Term, including, without limitation, the number of
registered users, demographic data with respect to such users,
source of the :CRQ Software, and breakdown of the number of
Content :Cues, Promotional :Cues and Commercial :Cues
delivered, with such data to be provided to Belo via the
delivery method and in the format generally used by DCCI to
provide data and information to its other partners; provided,
that the amount and quality of such aggregated data provided
to Belo shall be no less than that provided to any other
partner of DCCI. The Parties shall work together to ensure
that Belo is able to access and interpret such data in a cost
effective manner.
BY SIGNING BELOW, THE PARTIES HERETO AGREE TO BE BOUND BY THE TERMS AND
CONDITIONS OF THIS AGREEMENT, INCLUDING THE PRINCIPAL TERMS, THE GENERAL TERMS
AND THE EXHIBITS ATTACHED HERETO, WHICH
ARE INCORPORATED HEREIN BY REFERENCE.
--------------------------------------------------------------------------------
BELO INTERACTIVE, INC. DIGITAL CONVERGENCE.:COM INC.
--------------------------------------------------------------------------------
BY: /s/ XXX XXXXXXX BY: /s/ XXXXXXX XXXXX
--------------------------------------------------------------------------------
TITLE: PRESIDENT, BELO INTERACTIVE, INC. TITLE: PRESIDENT
--------------------------------------------------------------------------------
DATE: MAY 9, 2000 DATE: MAY 9, 2000
--------------------------------------------------------------------------------
9
GENERAL TERMS
:CRQ-TM- :CUE-TM- BROADCAST STATION AND CABLE CHANNEL AGREEMENT
1. GRANT OF RIGHTS: SIMILAR TECHNOLOGY. All rights not specifically granted
to Belo and each of the Belo Stations are reserved to DCCI. Belo shall not
use any technology that is similar to any patented (or patent pending)
technology of DCCI (including, without limitation, any technology that
uses a sound file to launch websites, web-based information or data files
or that could confuse the public that the technologies are related,
similar or from the same source) ("SIMILAR TECHNOLOGY"). The foregoing
exclusivity provision shall cover only technologies for which DCCI has
obtained United States patent protection (or for which a patent is
pending) and which is not subsequently found invalid or unenforceable by a
court or administrative agency. Notwithstanding the foregoing, Belo shall
not be precluded from engaging in business relationships with other
interactive television platform providers, as long as such activity does
not involve using Similar Technology. Further, the foregoing exclusivity
provision shall not be construed to prevent Belo from broadcasting or
otherwise exhibiting advertisements into which an advertiser may have
incorporated technology, whether produced or developed by the advertiser
or a third party, which DCCI may deem to be similar to the :CRQ :Cue
Technology.
2. USE OF :CUES; CONTENT OF LINKED SITES. Subject to Paragraph F of the
Principal Terms, each :Cue must be telecast by the Belo Stations in its
entirety at all times (i.e., both the complete Audio Component and the
complete Visual Service Xxxx must be included) precisely in the form
furnished to Belo by DCCI, and neither the Audio Component nor the Visual
Service Xxxx xxx be telecast by Belo without the other component, or with
any additional component, at any time. Except as provided in Paragraph 7
below respecting "make goods," Belo shall not exceed the Permitted Number
of :Cues set forth in the Principal Terms at any time. Belo agrees that
(i) Belo-Related Linked Websites will not contain any content that is
obscene, indecent, libelous or slanderous, or which infringes on the
rights of third parties or which is in violation of any laws or statutes,
(ii) all Content :Cues must link to non-commercial, content-oriented
Linked Websites in order to be deemed Content :Cues subject to the final
sentence of this Paragraph 2, and (iii) content-oriented Linked Websites
may not automatically redirect viewers to commercial-oriented websites.
Nothing in this paragraph shall be construed to forbid standard banner
advertising, signage, requests for information, or Station-related
announcements, which may be included (in the discretion of Belo) on each
page of each Linked Site. Anything to the contrary contained in
subparagraph (ii) above notwithstanding, the Parties shall negotiate in
good faith regarding an arrangement pursuant to which Belo would be
entitled to use Content :Cues and/or Promotional :Cues in order to link
viewers directly or indirectly to one or more Non-Belo Related Websites,
and pursuant to which Belo would be entitled to receive compensation;
provided, that if such agreement is reached between Belo and DCCI, any net
revenues actually received by Belo in connection therewith would be split
eighty percent (80%) to Belo and twenty percent (20%) to DCCI, with the
more specific terms of such arrangement to be mutually agreed; and failing
such agreement, Content and Promotional :Cues must be telecast free of
charge.
3. REPORTS AND ACCOUNTINGS/AUDIT RIGHTS. Within forty-five days after the end
of each Quarter, Belo shall furnish and/or cause each Belo Station to
furnish DCCI a :Cue Report and pay the Fees due under Paragraph B of the
Principal Terms for the prior Quarter. Upon thirty (30) business days'
notice, each Party may inspect, or have a mutually agreeable independent
auditor inspect, the books and records of the other Party to verify
compliance with the accounting and tracking terms and conditions of this
Agreement. Any such audit shall be conducted at the audited Party's
relevant facilities during normal business hours. Each Party may invoke
its audit rights under this Section 3 once every year during the Term of
this Agreement and for one (1) year thereafter. The auditing Party shall
conduct, or cause to be conducted, such audit at its own expense, except
that the auditing Party shall be entitled to reimbursement of its auditing
expenses by the auditing Party in the event that such audit reveals that
the audited Party has overcharged or underpaid the other Party for an
amount fairly valued at an amount greater than five percent (5%) of the
proper amount, or properly valued amount, for the audited time period.
Each Party shall only have access to those records necessary to verify the
fees and data required to be paid and tracked, respectively, under this
Agreement. Each party must use a Certified Public Accountant to conduct an
audit under this Section 3. Each Party shall maintain complete and
accurate records in accordance with sound accounting or other customary
practices to substantiate fees or charges and will preserve such records
for a period of at least one (1) year after the Term of this Agreement.
4. OWNERSHIP OF MARKS AND :CUE TECHNOLOGY. Regarding the ownership of Belo
Marks and DCCI Marks (collectively or separately referred to as the
"MARKS"), each Party agrees that the Marks of the other Party are and will
remain the sole property of such other Party. Neither DCCI nor Belo shall
do anything inconsistent with such ownership. All uses by one Party of the
other Party's Marks, including all goodwill generated by the party using
such Marks, shall accrue and inure to the benefit of and be on behalf of
the owner of such Marks. DCCI and Belo each agree that it shall not (i)
register or apply for registration of any element of the other Party's
Marks, (ii) assert any adverse claim against the other Party based upon
its use of the other Party's Marks and/or (iii) challenge or contest the
validity or ownership by the other Party of its Marks. DCCI and Belo each
reserve all rights to control the use of its respective Marks, and neither
Party shall use, change, or modify the other Party's Marks in any manner
without prior written authorization from the owner of such Marks. DCCI and
Belo each shall (i) cause the appropriate designation "-TM-" or the
registration symbol "-Registered Trademark-" to be placed adjacent to the
other Party's Marks in connection with each use or display thereof and to
indicate such additional information as the owner of the Marks shall
reasonably specify from time to time concerning the use of its Marks, and
(ii) comply with all applicable laws pertaining to trademarks in force. In
the event that either DCCI or Belo reasonably determines that its Marks
are being used by the other Party in a manner that is inconsistent with
the owner's quality standards and reasonably demonstrates such
inconsistency to the other Party, the other Party will within thirty (30)
days thereafter cure such inconsistency or cease such use. Except as
expressly granted in this Agreement, each Party shall have no other rights
of any kind in the Marks of the other Party. Under no circumstances will
anything in this Agreement be construed as granting, by implication,
estoppel or otherwise, a license to any of DCCI's or Belo's Intellectual
Property other than the use of each Party's respective Marks in accordance
with the terms of this Agreement. DCCI and Belo each acknowledge that the
other's Marks are the sole property of such Party, and this Agreement
only grants DCCI and Belo a limited right to use the Marks of the other
Party under the terms and conditions of this Agreement. The :CRQ :Cue
Technology, Encoding Hardware, :Cue Visual Service Xxxx, :Cue Audio
Component; :CRQ Software and all related
10
Intellectual Property are the sole property of DCCI. Belo shall not make
any other use whatsoever of DCCI's hardware, software or related
Intellectual Property or other proprietary information or materials.
Without limiting the foregoing, Belo shall not (i) reverse assemble,
reverse compile, reverse engineer, or disassemble DCCI's hardware,
software or related Intellectual Property; (ii) rent, lease, modify,
merge, create derivative works from, incorporate within any other
software, copy or transfer copies of the DCCI's hardware, software or
other Intellectual Property; or (iii) license or sublicense DCCI's
hardware, software or other Intellectual Property, in whole or in part, to
any third party unless specifically authorized in this Agreement. The
foregoing notwithstanding, DCCI shall have no right, title or interest in
the Belo Marks, Belo Links, content owned by Belo or content contained on
the Belo-Related Linked Websites or other Linked Websites.
5. PRESS RELEASES/PROMOTION/ CONFIDENTIALITY. Except to the extent required
by applicable law or as otherwise specified herein, any use by one Party
of the other Party's name, trademarks or service marks in any press
releases, customer lists, marketing materials or other announcements
concerning the matters covered by this Agreement, or for promotional,
advertising or other purposes, shall require the other Party's prior
written approval. Each party shall keep the terms of this Agreement
confidential and not disclose them to any third party without the prior
consent in writing of the other except as required by law or court order
and except to each party's accountants and attorneys who shall also keep
such information confidential.
6. REPRESENTATIONS AND WARRANTIES/INDEMNITIES. DCCI and Belo each represent
and warrant that it has the right to enter into this Agreement and grant
the rights herein granted, and that the person executing this Agreement is
duly authorized to do so. DCCI hereby represents and warrants to Belo, and
covenants and agrees with Belo that (a) it is either the owner of the :CRQ
:Cue Technology or it has the right to license to Belo the right to use
such :CRQ :Cue Technology as licensed herein; and (b) DCCI has not
knowingly attached or authorized the attachment of any virus, worm, Trojan
horse or similar instrumentality to the :CRQ :Cue Technology. Belo hereby
represents and warrants to DCCI, and covenants and agrees with DCCI that:
(a) it will furnish DCCI with accurate, up-to-date URL addresses of Linked
Websites; (b) Belo has, or will obtain on or prior to the time a
particular :Cue is telecast, the right to authorize DCCI to effect links
to all Linked Websites, and to have the Virtual Network appear on and in
connection with Belo-Related Linked Websites, (c) when arranging to effect
links to Linked Websites other than Belo-Related Linked Websites, it will
provide the owners and/or operators of such Linked Websites with a notice
prepared by DCCI and made available to the Belo Stations which shall
contain DCCI's standard terms with respect to :Cues, and (d) Belo or its
Affiliates have not knowingly attached or authorized the attachment of any
virus, worm, Trojan horse or similar instrumentality to any content or
software on the Belo-Related Linked Websites. Each party shall indemnify
and hold the other harmless from and against any claims, suits or
proceedings brought by or on behalf of any third party unaffiliated with
the indemnified party, arising out of or relating to any breach of any
representation, warranty or agreement by the indemnifying party herein
including, without limitation all damages, losses, civil and criminal
penalties and fines, costs and expenses including reasonable outside
attorneys' fees incurred as a result of any such claims, suits or
proceedings. This obligation shall survive the expiration or termination
of this Agreement.
7. LIMITED WARRANTIES. Except as otherwise specifically provided in this
Agreement, the DCCI Software, the DCCI Hardware, all :Cues, and the
services and materials being furnished by DCCI hereunder are furnished by
DCCI under this Agreement "AS IS," without any warranties of any kind,
whatsoever, provided that if DCCI is unable to deliver any :Cue to which
Belo is entitled hereunder, DCCI's shall provide Belo one substitute
"make-good" :Cue of the same type as the undelivered :Cue during the Term
for each such undelivered :Cue or, at DCCI's election, provide a pro rata
reduction of the Fee, and the foregoing shall be DCCI's sole obligation
and Belo's sole and exclusive remedy for undelivered :Cues. In no event
shall DCCI be liable for damages or the Belo Stations entitled to a refund
in such event. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EITHER EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY, NOR THEIR
RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AFFILIATES, AGENTS OR
SUPPLIERS, SHALL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR
INDIRECT DAMAGES, OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR
COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES ARISING FROM OR
RELATED TO THIS AGREEMENT, WHETHER FOR BREACH OF WARRANTY OR ANY
OBLIGATION ARISING THEREFROM OR OTHERWISE, HOWEVER CAUSED AND ON ANY
THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR STRICT LIABILITY), AND
IRRESPECTIVE OF WHETHER THE PARTY HAS ADVISED OR BEEN ADVISED OF THE
POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. UNDER NO CIRCUMSTANCES SHALL BELO
BE ENTITLED TO SPECIFIC PERFORMANCE, INJUNCTIVE RELIEF OR OTHER EQUITABLE
REMEDY ARISING OUT OF, OR RELATED TO THE SUBJECT MATTER OF, THIS AGREEMENT
AND BELO WAIVES ALL RIGHTS THERETO.
8. TERMINATION/EXPIRATION. Before the end of the Term, either Party may
terminate this Agreement (except for those terms that survive
termination): (i) upon thirty (30) days written notice to the other Party,
if such other Party has defaulted in the performance of any material
provision of this Agreement (timely accounting and payment as provided
herein being material) and fails to cure such default prior to expiration
of thirty (30) days after such notice; or (ii) upon written notice to the
other Party upon: (a) the institution by or against such other Party of
insolvency, receivership or bankruptcy proceedings or any other
proceedings for the settlement of such Party's debts, (b) such other
Party's making an assignment for the benefit of creditors, or (c) upon
such other Party's dissolution or ceasing to do business. Notwithstanding
anything stated herein, if this Agreement is terminated for any reason by
either Party, all rights and licenses granted pursuant to this Agreement
shall immediately revert and be fully vested in the grantor. In such
event, each Party shall promptly return to the other Party all
Intellectual Property, software and related documentation, hardware, or
other goods provided by such Party hereunder, unless otherwise agreed. In
addition, Belo shall have forty-five (45) days to submit or cause the Belo
Stations to submit a :Cue Report and to pay any fees or cause Belo to pay
any Fees due to DCCI pursuant to Paragraph B of the Principal Terms.
Except as required pursuant to Section 25 of Exhibit I, following
termination, DCCI shall have the option of terminating existing links to
Belo-Related Linked Websites or Linked Websites effected through :Cues
created during the Term and/or inserting a message to be displayed to
users attempting to activate a :Cue created during the Term notifying them
that the :Cue is no longer available. The termination or expiration of
this Agreement,
11
howsoever occasioned, shall not affect any of the provisions of this
Agreement that are expressly or by implication to come into or continue in
force after such termination or expiration.
9. INFRINGEMENT INDEMNIFICATION. DCCI shall indemnify, defend and hold
harmless Belo, the Belo Stations, their Affiliates and their respective
officers, shareholders, agents, directors, members, employees and agents
(the "RELATED INDEMNIFIED PARTIES"), from and against any and all losses,
claims, liabilities, damages, costs and expenses (including, without
limitation, reasonable outside attorneys' fees) arising out of or incurred
by any Belo-Related Indemnified Party as a result of any actual or
threatened third party (i.e., not an Affiliate, for the purposes of this
Section 9) claim, action, investigation, proceeding or suit (each, a
"CLAIM") alleging that the licensing, use, reproduction, display,
publishing, distribution or other exploitation of the :CRQ :Cue Technology
by any of the Belo-Related Indemnified Parties in accordance with the
rights granted hereunder constitutes an infringement, dilution or
unauthorized use of any patent, copyright, trademark, trade secret,
proprietary information, right of privacy or any other proprietary right
of any third party (collectively, an "INFRINGEMENT"). Belo similarly shall
indemnify, defend and hold harmless DCCI and its Related Indemnified
Parties from and against any and all Claims alleging that the licensing,
use, reproduction, display, publishing distribution and other exploitation
of content and/or software contained on all Belo-Related Linked Websites,
and/or in the programming of any Belo Station, constitutes an
Infringement, or that Belo's authorization of any such link was not
permitted. To the extent that Belo obtains an indemnity from parties who
own or control any and all Non-Belo Linked Websites to indemnify, defend
and hold harmless Belo and/or its Related Indemnified Parties from and
against Claims alleging that the licensing, use, reproduction, display,
publishing distribution and other exploitation of content and/or software
contained on such Non-Belo-Related Linked Websites, constitutes an
Infringement, Belo shall indemnify, defend and hold harmless DCCI and its
Related Indemnified Parties from such Claims to the same extent. In the
event some or all of the :CRQ :Cue Technology is held by a court of
competent jurisdiction to infringe a third party proprietary right, an
injunction is obtained against use of any material portion of the :CRQ
:Cue Technology, then DCCI shall promptly, at its option and expense,
either: (i) procure for Belo the right to continue to use the infringing
:CRQ :Cue Technology as set forth in this Agreement, (ii) replace or
modify the infringing :CRQ :Cue Technology to make its use non-infringing
while being capable of performing essentially the same functions, or (iii)
if, using its best efforts, DCCI is unable to do either of the
aforementioned options, then DCCI may require Belo to return the
infringing material and shall refund to Belo any fees paid to DCCI under
this Agreement and have the option of terminating this Agreement. The
foregoing shall be Belo's sole remedy in the event the :CRQ :Cue
Technology is found to be infringing.
10. FORCE MAJEURE. The performance of the Parties shall be suspended during
any event of force majeure, as such term is commonly understood, except
that each Party shall have the right to terminate this Agreement in the
event any event of force majeure lasts longer than ninety (90) days.
11. MISCELLANEOUS. To the extent there is any inconsistency between these
General Terms and the Principal Terms, the Principal Terms shall govern.
Each Party shall be responsible for any and all taxes, if any, incurred by
such Party in connection with this Agreement. Belo and DCCI are
independent contractors under this Agreement, and nothing herein shall be
construed to create a partnership, joint venture or agency relationship
between Belo and DCCI. Belo has no authority to enter into agreements of
any kind on behalf of DCCI. Belo Stations may not assign this Agreement or
any of their rights or delegate any of their duties hereunder without the
prior consent in writing of DCCI and any purported assignment or
delegation without such required consent shall be null and void. This
Agreement shall be construed in accordance with the laws of the State of
New York. Any and all disputes, differences or controversies arising out
of, under or in connection with this Agreement, or the breach or alleged
breach thereof, shall be submitted to arbitration to be held in New York,
New York under the rules and regulations of the American Arbitration
Association before a single arbitrator, and judgment upon the award
rendered may be entered in any court having jurisdiction thereof; except
any claim (including defenses thereto) which potentially concerns the
validity, enforceability or infringement of Intellectual Property owned or
controlled by DCCI shall not be resolved by arbitration without the prior
approval in writing of DCCI, and instead shall be resolved exclusively in
a court of competent jurisdiction located in New York, New York, and both
parties waive any objections to jurisdiction or venue with respect
thereto. All notices, demands and other communications hereunder shall be
in writing and shall be deemed to have been duly given: (i) if mailed by
certified mail, postage prepaid, on the date three (3) days following the
date of mailing, (ii) if delivered by overnight courier, when received by
the addressee or (iii) if sent by confirmed telecommunication, one
business day following receipt by the addressee at the address set forth
at the beginning of this Agreement, or such other address as either party
may specify in writing. This Agreement may be executed in one or more
counterpart copies, each of which shall be considered an original, and all
of which when taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page by telecopier
shall be as effective as delivery of an original manually executed
counterpart. No waiver of any breach of any provision of this Agreement
shall constitute a waiver of any prior, concurrent or subsequent breach of
the same or any other provisions hereof, and no waiver shall be effective
unless made in writing and signed by an authorized representative of the
waiving party. In the event any provision of this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, the
remaining provisions shall remain in full force and effect. In resolving
any dispute or construing any provision hereunder, there shall be no
presumptions made or inferences drawn (i) because the attorneys for one of
the parties drafted the agreement; (ii) because of the drafting history of
the agreement; or (iii) because of the inclusion of a provision not
contained in a prior draft, or the deletion of a provision contained in a
prior draft. Section headings are for convenience only and are not a part
of this Agreement. This Agreement contains the entire understanding of the
parties hereto with respect to the transactions and matters contemplated
hereby, supersedes all previous agreements between DCCI and Belo
concerning the subject matter, and cannot be amended except by a writing
signed by both parties. No party hereto has relied on any statement,
representation or promise of any other party or with any other officer,
agent, employee or attorney for the other party in executing this
Agreement except as expressly stated herein.
12
EXHIBIT I
ANNEX OF DEFINITIONS
1. "AFFILIATE" means any Person that is directly or indirectly, through
one or more intermediaries, Controlled by or under common Control with
a Party. For purposes of this definition, "CONTROL" shall mean
possessing, directly or indirectly, the power to direct or cause the
direction of the management, policies and operations of a Person,
whether through ownership of voting securities, by contract or
otherwise.
2. "BELO CABLE NEWS CHANNEL" means those Belo Affiliates that constitute
owned-and-operated cable news program services or channels set forth in
the Fee Table attached as Exhibit II hereto that transmit television
programs over cable or via satellite; provided that any such
service or channel not listed may be added to this Agreement only if:
(i) any additions shall be subject to the terms of this Agreement, (ii)
the Parties are able to agree on License Fees for such additional cable
services or channels, and (iii) the addition of any such cable services
or channels does not put DCCI in default of a third party agreement or
otherwise expose DCCI to any third party liability.
3. "BELO LINKS" means any Belo Marks, icons, buttons or other graphic
elements that, when activated by a computer user, link such user to
specific pages on Belo-Related Linked Websites.
4. "BELO MARKS" mean the trademarks, trade names, service marks, logos,
domain names and indicia owned, controlled by or licensed by Belo or
any Affiliate relating to Belo or any Affiliate which are specified
on Exhibit IV hereto.
5. "BELO-RELATED LINKED WEBSITE" means each website owned and/or operated
by Belo or a Belo Station.
6. "BELO STATIONS" means each of the Belo Television Stations and Belo
Cable News Channels, and other entities which DCCI may approve in
writing from time to time.
7. "BELO TELEVISION STATION" means those Affiliates of Belo that create
and broadcast content and programs available to the public by means of
free, over-the-air television, either as an owner/operator or as a
programmer pursuant to a local marketing agreement, and which are
listed on the Fee Table attached as Exhibit II hereto; provided that
any such free over-the-air television station not listed may be added
to this Agreement, provided (i) any additions shall be subject to the
terms of this Agreement, (ii) the Parties are able to agree on License
Fees for such additional stations, and (iii) the addition of any such
stations does not put DCCI in default of a third party agreement or
otherwise expose DCCI to any third party liability.
8. ":CAT SCANNER" means a DCCI proprietary bar code scanning pen for use
with the :CRQ Software.
9. "COMMERCIAL :CUE" means a :Cue created by DCCI at the request of Belo
and telecast in a commercial spot, sponsored announcement or otherwise
where the Linked Website of the
13
:Cue relates primarily to any commercial service or product (i.e., as
opposed to relating to informational content or specific promotions of
Belo programs).
10. "CONTENT :CUE" means a :Cue created by DCCI at the request of Belo and
telecast in a television program where the Linked Website of the :Cue
relates primarily to the creative or editorial content of the program
and where no payment or other consideration is received. All Content
:Cues must link to non-commercial, content-oriented Linked Websites in
order to be deemed Content :Cues, and such content-oriented Linked
Websites may not automatically redirect viewers to commercial-oriented
matter.
11. ":CRQ :CUE TECHNOLOGY" means DCCI's proprietary software, hardware or
other technology, and any Intellectual Property related thereto, used
to transmit :Cues in a television signal and to allow personal
computers programmed with the :CRQ Software to automatically access or
be directed to Linked Websites (including, without limitation, the :CRQ
Software, the Encoding Hardware, the Audio Component and the Visual
Service Xxxx.
12. ":CRQ SOFTWARE" means DCCI's proprietary software, available to
consumers via disk, CD-ROM, download over the Internet or via such
other means as DCCI shall determine, and that, when installed on a
personal computer, will allow a television viewer or a user of a :Cat
Scanner to automatically access or be directed to a Linked Website or
data file in response to receipt of a :Cue or data from a :Cat Scanner.
13. ":CRQ USER DATA" means (i) any and all data and information collected
during the process through which viewers register to use the :CRQ
Software (e.g., name, e-mail address, address, sex, age, etc.), as well
as (ii) any and all data, information and content relating to Belo
:Cues (but not the look, feel or presentation of such content)
concerning :CRQ Software users collected by or on behalf of DCCI during
the Term; provided in the case of all the foregoing: (a) such users
have downloaded the :CRQ Software directly from Belo-Related Linked
Websites and registered through use thereof, and (b) such users have
not opted out of sharing such data with Belo (e.g., by affirmatively
"un-checking" a pre-checked opt-out box stating that the user agrees to
permit such sharing of data).
14. ":CUE" means the simultaneous broadcast or transmission to the public
of the :Cue Visual Service Xxxx with the :Cue Audio Component, which
broadcast or transmission can remotely enable a television viewer's
personal computer programmed with the :CRQ Software and access the
World Wide Web to link automatically with a designated Linked Website.
15. ":CUE AUDIO COMPONENT" means a brief audio tone (the "SCREECH") in
which encoded information is embedded to direct the :CRQ Software to a
designated Linked Website which is played by a television speaker. The
Screech shall be accompanied by a sound(s) or musical phrase that is
mutually chosen by DCCI and Belo (the "AUDIO SERVICE XXXX") that is
played by a television speaker at the minimum volume required to
guarantee the operation of the :CRQ :Cue Technology; provided, that the
volume of the Screech and the Audio Service Xxxx shall always be
identical and shall never exceed fifty-two (52) decibels; provided,
further, that if Belo and DCCI are unable to agree upon the specific
sound(s) or musical phrase to be used, then a single musical note
selected by DCCI shall be used. The :Cue Audio Component will always be
broadcast or transmitted simultaneously with the :Cue
14
Visual Service Xxxx. The :Cue Audio Component will be furnished by DCCI
at the request of Belo from DCCI's server in accordance with the terms
of this Agreement.
16. ":CUE REPORT" means a list of all Belo :Cues telecast during each
calendar month during the Term by Belo or any sublicensee, including at
least an identification of the type of :Cue telecast, the originating
Belo Station or third party station, if applicable, and the date and
time
when the applicable :Cue was telecast.
17. ":CUE USER DATA" means any and all data and information collected
during the registration process (e.g., name, e-mail address, address,
sex, etc.), as well as any and all data, information and content
related to Belo :Cues (but not the look, feel or presentation of such
content) collected by or on behalf of DCCI during the Term concerning
:CRQ Software users who have received a :Cue broadcast or transmitted
by a Belo Station and accessed a Linked Website via such :Cue.
18. ":CUE VISUAL SERVICE XXXX" means the animated version of DCCI's service
xxxx (i.e., an inverse bass-clef or such other service xxxx as DCCI
shall determine) as furnished by DCCI to Belo that will give television
viewers a visual cue that the :Cue is being transmitted; provided, that
the animation of the :Cue shall be substantially similar to that
demonstrated to Belo's technical staff on or before the Effective Date.
The :Cue Visual Service xxxx shall appear (underscan and small screen
title safe) in the lower right quadrant of the television or monitor
viewing area, shall appear in a size that is (a) 40 pixels from left to
right and (b) 32 lines from top to bottom on a conventional television
set, and which :Cue Visual Service Xxxx shall always appear in its
entirety. The :Cue Visual Service Xxxx shall always be broadcast or
transmitted simultaneously with the :Cue Audio Component. The Visual
Service Xxxx will be furnished to Belo by DCCI in the form of a
graphics element prior to the commencement of the Term.
19. "DCCI ICON" means the DCCI icon or button or other graphic element in
the form of the :Cue Visual Service Xxxx, and accompanying explanatory
text to be mutually agreed by the Parties (with Belo not to
unreasonably withhold or delay its agreement thereto), appearing on
Belo-Related Linked Websites or Affiliated Websites which, when
activated by a computer user, will allow the user to download the :CRQ
Software and which DCCI Icon will be readily legible to the average
user.
20. "DCCI MARKS" means the trademarks, trade names, service marks, logos,
domain names and other indicia owned or controlled by or licensed by
DCCI or any Affiliate relating to DCCI or any Affiliate which are
specified on Exhibit V attached hereto.
21. "DCCI'S VIRTUAL NETWORK" means the border controlled by DCCI
surrounding Linked Websites accessed via the :CRQ Software and
consisting of (i) a vertical bar on the side of the computer screen or
monitor ("THIRD PARTY BANNER BAR"), and (ii) a horizontal bar on the
bottom side of the computer screen or monitor ("CATEGORY TAB BAR").
Unless modified by the viewer, the maximum width of the Third Party
Banner Bar will be 100 pixels and the maximum height of the Category
Tab Bar will be 60 pixels. The Third Party Banner Bar and Category Tab
Bar will be dynamic (i.e., their size, color and other characteristics
will be adjusted depending on the Linked Site), but the icons and text
contained on each bar will be readily
15
legible to the average user and the DCCI Virtual Network will be
designed and delivered to the user containing HTML Size 1 links.
22. "ENCODING HARDWARE" means DCCI's proprietary hardware that DCCI will
furnish Belo prior to commencement of the Term for use by the Belo
Stations use during the Term, subject to the terms and conditions of
this Agreement, which Encoding Hardware will allow the Belo
Stations to insert :Cues into live programming.
23. "INTELLECTUAL PROPERTY" means all patents and patent applications;
trademarks, service marks, and trademark or service xxxx registrations
and applications, trade names, Internet domain names, and general
intangibles of like nature, together with all goodwill related to the
foregoing; copyrights, copyright registrations, renewals and
applications for copyrights; trade secrets and other proprietary
information and know-how.
24. "LAUNCH DATE" means the date on which a package of the :CRQ Software
and :Cat Scanner is distributed to at least five (5) million persons
and at least five (5) million persons have loaded or downloaded the
:CRQ Software and registered through the use thereof.
25. "LINKED WEBSITE" means the website address (or other address acceptable
to DCCI) furnished by Belo to DCCI in connection with each :Cue
requested by Belo. DCCI shall enable, and Belo shall maintain, links
from :Cues transmitted by Belo during the Term to associated Linked
Websites for one hundred eighty (180) days from the first telecast of
the :Cue (and Belo shall notify DCCI of such dates within thirty (30)
days of the telecast), subject to the terms and conditions set forth in
this Agreement; provided, that this 180-day period shall not be
abridged with respect to any particular :Cue by any expiration of this
Agreement or termination by Belo of this Agreement. During the Term,
after the aforementioned 180-day period when a Belo :Cue is no longer
in use, DCCI shall try to recycle such :Cues back to Belo when Belo
requests a :Cue from DCCI; and during the Term (and for particular
:Cues during the aforementioned 180-day period to the extent they may
extend beyond the Term) shall try not to assign such :Cues to third
parties. After the 180-day period, DCCI may terminate links to
Belo-Related Linked Websites and/or other Linked Websites, and/or
insert a message to be displayed to viewers activating a :Cue created
during the Term notifying them that the :Cue is no longer available.
26. "NBC STATIONS" means local, over-the-air, broadcast television stations
or cable television channels or program services that are owned and
operated by the National Broadcasting Company, Inc.
27. "NON-BELO LINKED WEBSITES" means Linked Websites that are not
Belo-Related Websites.
28. "PERMITTED :CUES" means Content, Promotional and Commercial :Cues, in
the quantities per time period specified in this Agreement.
29. "PERSON" means an individual or a corporation, partnership, limited
liability company, joint venture, trust or any other entity or
organization.
30. "PERSONAL DATA" means data relating to the personal identity of the
party to whom the data relates, such as name, phone number, address or
any similar information that could identify
16
a party as a particular individual, which data shall not be shared with
Belo hereunder notwithstanding any other provision contained in this
Agreement.
31. "PRIME TIME" means 8:00 p.m. through 11:30 p.m. in the Eastern Time
Zone, 7:00 p.m. through 10:30 p.m. in the Central and Mountain Time
Zones, and 8:00 p.m. through 11:30 p.m. in the Pacific Time Zone.
32. "PROMOTIONAL :CUE" means a :Cue created by DCCI at the request of Belo
and telecast in (i) a spot promoting programming of a Belo Station,
(ii) in a corporate promotional spot for the Belo Station itself or
Belo-Related Linked Website, or (iii) public service announcements and
(iv) other promotional spots; and in all of the foregoing cases, where
the Linked Website relates primarily to the subject matter of the
promotion and where no payment or other consideration is received.
33. "QUARTER" means each three (3) month period during the Term that is
ninety (90) days following the Launch Date.
17
EXHIBIT II
FEE TABLE
------------------------------------------------------------------------------------------------------------------------------------
DMA-STATION FIXED ANNUAL LICENSE FEE PERSONAL COMMERCIAL :CUE FEE
------------------------------------------------------------------------------------------------------------------------------------
Dallas/Fort Worth, Texas--WFAA $350,000 $350
------------------------------------------------------------------------------------------------------------------------------------
Houston, Texas--KHOU $350,000 $350
------------------------------------------------------------------------------------------------------------------------------------
Seattle/Tacoma, Washington--KING $350,000 $350
------------------------------------------------------------------------------------------------------------------------------------
Seattle/Tacoma, Washington--KONG No Charge No Charge
------------------------------------------------------------------------------------------------------------------------------------
St. Louis, Missouri--KMOV $200,000 $200
------------------------------------------------------------------------------------------------------------------------------------
Portland, Oregon--KGW $200,000 $200
------------------------------------------------------------------------------------------------------------------------------------
Charlotte, North Carolina--WCNC $200,000 $200
------------------------------------------------------------------------------------------------------------------------------------
San Antonio, Texas--KENS $100,000 $100
------------------------------------------------------------------------------------------------------------------------------------
Hampton/Norfolk, Virginia--WVEC $100,000 $100
------------------------------------------------------------------------------------------------------------------------------------
New Orleans, Louisiana--WWL $100,000 $100
------------------------------------------------------------------------------------------------------------------------------------
Louisville, Kentucky--WHAS $100,000 $100
------------------------------------------------------------------------------------------------------------------------------------
Tulsa, Oklahoma--KOTV $100,000 $100
------------------------------------------------------------------------------------------------------------------------------------
Spokane, Washington--KREM $100,000 $100
------------------------------------------------------------------------------------------------------------------------------------
Spokane, Washington--KSKN No Charge No Charge
------------------------------------------------------------------------------------------------------------------------------------
Tucson, Arizona--KMSB $100,000 $100
------------------------------------------------------------------------------------------------------------------------------------
Tucson, Arizona--KTTU $25,000 $25
------------------------------------------------------------------------------------------------------------------------------------
Boise, Idaho--KTVB $100,000 $100
------------------------------------------------------------------------------------------------------------------------------------
Austin, Texas--KVUE $100,000 $100
------------------------------------------------------------------------------------------------------------------------------------
Phoenix, Arizona--KTVK $350,000 $350
------------------------------------------------------------------------------------------------------------------------------------
Phoenix, Arizona--KASW $175,000* $175*
------------------------------------------------------------------------------------------------------------------------------------
*Subject to Paragraph D(1) of the
Principal terms
------------------------------------------------------------------------------------------------------------------------------------
CABLE NEWS CHANNEL** (see footnote)
on following page)
------------------------------------------------------------------------------------------------------------------------------------
Texas $25,000 Not Applicable
------------------------------------------------------------------------------------------------------------------------------------
Northwest (i.e., Washington, Oregon, $25,000 Not Applicable
Idaho)
------------------------------------------------------------------------------------------------------------------------------------
Arizona $25,000 Not Applicable
------------------------------------------------------------------------------------------------------------------------------------
New Orleans, Louisiana $15,000 Not Applicable
------------------------------------------------------------------------------------------------------------------------------------
Norfolk/Portsmouth/ $15,000 Not Applicable
Newport News, Virginia
------------------------------------------------------------------------------------------------------------------------------------
Louisville, Kentucky $15,000 Not Applicable
------------------------------------------------------------------------------------------------------------------------------------
St. Louis, Missouri $15,000 Not Applicable
------------------------------------------------------------------------------------------------------------------------------------
Tulsa, Oklahoma $15,000 Not Applicable
------------------------------------------------------------------------------------------------------------------------------------
Charlotte, North Carolina $15,000 Not Applicable
------------------------------------------------------------------------------------------------------------------------------------
18
EXHIBIT II
FEE TABLE (CON'T)
** Belo represents and warrants that it has an operational Belo Cable
News Channel and associated website in the Northwest (i.e., Washington,
Oregon, Idaho). With respect to the foregoing Belo Cable News Channel, Belo
shall pay DCCI the applicable Fixed Annual License Fee effective as of the
beginning of the Initial Payment Period, except as otherwise set forth in
Paragraph B of the Principal Terms.
Belo represents and warrants that it has operational Belo Cable News
Channels, but no associated websites, in (a) Texas, (b) Arizona; (c) New
Orleans, Louisiana; and (d) Norfolk/Portsmouth/Newport News, Virginia. With
respect to the Belo Cable News Channel in Texas, Belo shall pay DCCI the
applicable Fixed Annual License Fee, which fee shall be due on the earliest of
the following dates: (i) the date on which Belo has launched the website for
the Texas Belo Cable News Channel; (ii) the date on which Belo telecasts the
first :Cue on the Texas Belo Cable News Channel; or (iii) January 1, 2001. The
applicable Fixed Annual License Fee shall be prorated based on the length of
the Term remaining after the earliest date set forth in the immediately
preceding sentence.
Belo represents and warrants that it has neither operational Belo
Cable News Channels nor associated websites in (a) Louisville, Kentucky; (b)
St. Louis, Missouri; (c) Tulsa, Oklahoma; or (d) Charlotte, North Carolina.
With respect to the foregoing four (4) Belo Cable News Channels, and with
respect to the operational Belo Cable News Channels in Arizona, New Orleans,
Louisiana and Norfolk/Portsmouth/Newport News, Virginia (where Belo has
operational Belo Cable News Channels but no associated websites), Belo shall
pay DCCI the Fixed Annual License Fee on the earlier of the following dates:
(a) the date on which the applicable website becomes operational, or (b) the
date on which the applicable Belo Cable News Channel telecasts the first :Cue
on the applicable Belo Cable News Channel. The applicable Fixed Annual License
Fee shall be prorated based on the length of the Term remaining after the
earliest date set forth in the immediately preceding sentence.
In the event DCCI during the Term wishes to enter into negotiations
with a third party cable channel or program service in a market in which Belo
does not yet have an operational Belo Cable News Channel, DCCI shall notify
Belo of the existence of such intention, whereupon Belo shall have thirty (30)
days from receipt of such notice to advise DCCI in writing that it intends to
begin operation of a Belo Cable News Channel and related website in the
applicable market within one hundred twenty (120) days from the date DCCI
furnished Belo with notice. If DCCI does not receive such notice of intention
from Belo within the foregoing thirty (30) day period, or if Belo notifies
DCCI that it will not have a Belo Cable News Channel and related website
operational by the end of the one hundred twenty (120) day period, then Belo
shall have no further rights with respect to the applicable Belo Cable News
Channel and DCCI shall be free to enter into an agreement or other arrangement
with any other third party.
19
EXHIBIT III
DCCI SERVICE LEVELS
The DCCI Service levels are intended to: (i) enable the Belo Stations
to understand clearly what level of service to expect from DCCI, (ii) enable
DCCI to understand clearly what level of service to provide to the Belo
Stations, and (iii) define what measures and actions should be taken if that
level of service is not provided.
1. TELEPHONE SUPPORT. DCCI shall make available to the Belo
Stations technical support via e-mail or telephone. DCCI shall provide
appropriate technical support personnel who shall have a sufficient level of
skill and experience in order to handle all reasonably foreseeable problems
with the :CRQ :Cue Technology, the Encoding Hardware, the CRQ Software, the
DCCI Virtual Network, the Encoding Hardware and the other hardware and
software used by DCCI in association therewith (the "DCCI Systems").
2. UPTIME. DCCI shall provide the services specified in this
Agreement such that they are available and accessible for 99.8% of the time
during each calendar month. Downtime will be not be deemed to have occurred
where the interruption is the result of circumstances or caused beyond the
reasonable control of DCCI.
3. SCHEDULED MAINTENANCE. DCCI shall schedule maintenance for
various nodes of its network to minimize impact on the Belo Stations. DCCI
shall schedule these windows corresponding to the recognized activity on the
network services in order to achieve that goal. A subscription based e-mail
mailing list shall be made available to each Belo Station which will announce
in advance these schedule outages and impacts.
4. DELIVERY OF :CUE AUDIO COMPONENTS. In order for :Cues to be
successfully deployed by the Belo Stations, the applicable Belo Station must
request and receive :Cue Audio Component from DCCI for insertion into the
audio portion of the television signal. Such request may be made by Belo
Stations via the CM Internet system made available by DCCI to the Belo
Stations. DCCI commits to delivering such Audio Components to the applicable
Belo Stations such that it is received with in two (2) hours of receipt of the
request; provided, that DCCI will not be deemed to have failed to meet this
obligation to the extent such DCCI will not be deemed to have failed to meet
this obligation to the extent such failure is due to circumstances or caused
beyond the reasonable control of DCCI.
5. DIRECTION TO LINKED WEBSITES. In order for viewers to obtain
the benefits of the :Cues, the viewer's Internet browser must be accurately
directed to the Linked Websites specified by the applicable Belo Station in a
timely manner. DCCI commits that if a viewer of a Permitted :Cue has complied
with DCCI's specifications regarding the installation of hardware and
software, such viewer's Internet browser will be directed to the Linked
Website specified by the applicable Belo Station within an average of thirty
(30) seconds of the time the applicable Audio Component is telecast; provided,
that DCCI will not be deemed to have failed to meet this obligation to the
extent such failure is due to circumstances or causes beyond the reasonable
control of DCCI.
6. PROBLEM MANAGEMENT. DCCI shall continuously monitor the
performance of its systems and shall promptly notify each Belo Station of any
bug or other problem which has or is likely to result in a failure by DCCI to
meet the standards set forth herein. If a permanent repair cannot be made, a
temporary resolution (bypass and recovery) will be implemented and a permanent
repair implemented thereafter as soon as possible. DCCI shall maintain
sufficient staff and resources in order to achieve the high level of service
described in this Agreement and this Exhibit III.
20
7. REMEDIES. In the event that any failure on the part of DCCI
to comply with the standards set forth in this Exhibit III results in the
failure of a Commercial :Cue to be properly received by viewers, then with
respect to each such failure, each affected Belo Station shall receive one (1)
"make good" Commercial :Cue plus one (1) additional free Commercial "Cue. In
the event that any series of failures on the part of DCCI to comply with the
standards set forth in this Exhibit III results in the failure of a four (4)
Content :Cues and/or Promotional :Cues to be properly received by viewers,
then with respect to each such four (4) failures, each affected Belo Station
shall receive four (4) "make good" Promotional or Content :Cues plus one (1)
additional free Promotional or Content :Cue.
8. CONTACT MANAGERS. Each Belo Station and DCCI shall specify
an account manager (each, an "Account Manager") who shall be the primary
points of contact for problems and inquiries under the Agreement, and each
Account Manager shall provide the Account Managers with such information and
assistance as may be reasonably requested by the Account Managers from time to
time. DCCI and each Belo Station may change its designated Account Manager by
giving the Account Managers written notice of such change.
21
