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EXHIBIT 10.5
STRATEGIC ALLIANCE AGREEMENT
This Strategic Alliance Agreement (this "Agreement"), dated as of
February 26, 1998 (the "Effective Date"), is by and between 2 WAY MEDIA, INC. a
Delaware corporation, ("LAUNCH"), and NBC MULTIMEDIA, INC., a Delaware
corporation ("NBC").
RECITALS
A. Concurrently with the execution and delivery of this Agreement, and
pursuant to the terms and conditions of that certain Securities Purchase
Agreement of even date herewith (the "Securities Purchase Agreement") by and
between LAUNCH, NBC and other investors, LAUNCH shall issue and NBC shall
receive 1,960,784 ($3mm) shares (the "Purchased Shares") of LAUNCH, Series D
Stock, as such term is defined in the Securities Purchase Agreement. In
addition, LAUNCH shall issue a Warrant which will permit NBC to purchase
1,979,323 additional shares of LAUNCH, Series D Stock (the "Warrant") which
number of shares is subject to certain adjustments described in the Warrant
itself.
B. As a condition to, and as sole consideration for, the issuance of
1,307,190 ($2mm) of the Purchased Shares covered by the Securities Purchase
Agreement and the Warrant by LAUNCH to it, NBC has agreed to enter into this
Agreement pursuant to which, and subject to the terms and conditions set forth
below, LAUNCH shall supply music content and information in connection with
NBC's XXX.xxx world wide web site as described below.
NOW, THEREFORE, in consideration of the terms and conditions set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties hereto, NBC and LAUNCH agree as
follows:
AGREEMENT
1. DEFINITIONS
(a) "Adult Content" shall mean any material, including audio or video
material, which is pornographic or which contains nudity, explicit sexual
material or depictions of sexual acts any of which is beyond that normally
broadcast over the NBC Television Network.
(b) "Affiliates" of a specified person means a person who directly or
indirectly through one or more intermediaries Controls, is Controlled by, or is
under common Control with, such specified person.
(c) "Co-branded Area(s)" shall mean that area (or areas) of myLAUNCH
which contains NBC Branding or other material provided by NBC with the
characteristics described in Section 2(a).
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
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(d) "Control" shall mean, with respect to any world wide web site,
distribution channel or source of any content, the ability to control, and the
actual control, including the final approval right, of the presentation of
content on such world wide web site, distribution channel or source, and with
respect to any entity, the possession, directly or indirectly, of the power to
appoint a majority of the directors or such other persons who direct or cause
the direction of the management and policies of a legally recognizable entity,
whether through the ownership of voting shares, by contract, or otherwise. Where
such entity is a partnership, limited liability company, corporation, or similar
entity and has partners, members, or shareholders with equal ownership interests
or equal control interests, by contract or otherwise, then each such partner,
member, or shareholder will be deemed to possess, directly or indirectly, the
power to direct or cause the direction of the management and policies of that
entity.
(e) "Confidential Information" shall mean (i) any trade secrets relating
to either party's product or service, plans, designs, costs, prices and names,
finances, marketing plans, business opportunities, personnel, research,
development or know-how; and (ii) the specific terms and conditions of this
Agreement. "Confidential Information" shall not include information that: (i) is
or becomes generally known or available, whether by publication, commercial use
or otherwise, without restriction on disclosure and through no fault of the
receiving party; (ii) is known by the receiving party prior to the time of
disclosure; (iii) is independently developed or learned by the receiving party
without reference to any Confidential Information of the disclosing party; or
(iv) is lawfully obtained from a third party that the receiving party reasonably
believes has the right to make such disclosure.
(f) "Derivative Material" shall mean any material, including any text,
graphics or story ideas, concepts or characters, which is based upon, or derived
from, NBC Material (i.e., any "derivative" thereof) as well as the "look and
feel" thereof and of the pages and areas of XXX.xxx and myLAUNCH on which such
material appears, regardless of which party actually produces it.
(g) "Intellectual Property Rights" shall mean all artistic or
proprietary rights owned or Controlled throughout the world, including, but not
limited to, copyrights, moral rights, trade secrets, trademarks, service marks
and patents.
(h) "Internet" shall mean (i) the distributed interactive computer
network commonly referred to as the internet, and (ii) any other interactive
on-line or distributed computer network distribution methods in their current
form as of the date hereof, including, without limitation, America Online,
@Home, Road Runner, CompuServe and Prodigy. The term Internet shall not include
any traditional analog or digital broadcast or distribution medium (e.g.,
traditional analog or digital broadcast and digital or analog cable or satellite
transmission) by which television, film, other audio/visual or textual
programming is disseminated to viewers.
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(i) "LAUNCH Branding" shall mean any LAUNCH trademarks, service marks,
designs or logos which LAUNCH may designate for use hereunder.
(j) "LAUNCH Material" shall mean any material, other than NBC Material
or Derivative Material but including LAUNCH Branding, which LAUNCH produces or
provides to NBC in connection with the activities described herein.
(k) "myLAUNCH" shall mean the world wide web site on the Internet
operated by LAUNCH with the URL address of xxx.xxxxxxxx.xxx or its successors
and any successor or replacement of xxx.xxxxxxxx.xxx on the Internet during the
Term, if any, which replacement site contains LAUNCH Branding, provides the
material substantially similar to that currently provided at xxx.xxxxxxxx.xxx
and is Controlled by LAUNCH.
(l) "NBC Advertising Standards" shall mean any and all standards set by
NBC for advertising appearing on the NBC Television Network, including any
amendments thereto, about which LAUNCH is made aware by NBC and which are
relevant to material on the Internet.
(m) "NBC Branding" shall mean any NBC trademarks, service marks, designs
or logos which NBC may designate for use hereunder.
(n) "XXX.xxx" shall mean the world wide web site on the Internet
operated by NBC with the URL address of xxx.xxx.xxx or its successors and any
successor or replacement of xxx.xxx.xxx on the Internet during the Term, if any,
which replacement site contains NBC Branding, provides the material
substantially similar to that currently provided at xxx.xxx.xxx and is
Controlled by NBC. The parties agree that the ten-n "XXX.xxx" shall not include
any of the world wide web sites on the Internet operated by or associated with
[ * ] specifically described in the previous sentence.
(o) "NBC Material" shall mean any material, including any text,
graphics, audio, video, photos or software as well as any NBC Branding, provided
to LAUNCH or primarily created by NBC or its affiliates, licensors or suppliers.
(p) "Net Advertising Revenue" shall mean all advertising revenue
actually collected by LAUNCH in connection with the Co-branded Areas (including
in-kind compensation) less actual selling commissions, agency commissions, and
all actual out of pocket expenses directly incurred by LAUNCH in connection with
creating, selling and fulfilling such advertising, which commissions and
expenses shall in no event in total exceed [ * ] of gross advertising revenues.
(q) "Original Purchase Price" shall mean the price per share applicable
to the Purchased Shares as of the Effective Date hereof which is $1.53.
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SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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(r) "Other Networks" shall mean [ * ].
(s) "Products" shall mean any merchandise or services offered for sale
by LAUNCH on myLAUNCH, including music CDs, audio tapes or CD-ROMs but excluding
any merchandise directly based on LAUNCH Branding (e.g., LAUNCH T-shirts) and
the LAUNCH CD-ROM magazine.
(t) "Prohibited Sponsors" shall mean [ * ].
(u) "Term" shall mean, collectively, the Initial Term and any Renewal
Terms, as those terms are defined in Section 12 below.
2. LAUNCH RESPONSIBILITIES.
(a) Creation of Co-branded Area. LAUNCH agrees that it will create,
update and maintain, at its own expense, a sub-site or area of MyLAUNCH which
will be branded as described in Section 2(c) below and which shall contain (i)
content and information to be originally created or obtained by LAUNCH for use
thereon, (ii) content and information created or obtained by LAUNCH for use
elsewhere on myLAUNCH or other LAUNCH projects which is relevant to the topics
on the Co-branded Area and (iii) content and information that NBC provides to
LAUNCH for use thereon. The Co-branded Area will be directly or indirectly tied
to the music content, information and services appearing on XXX.xxx and shall
have a design and format which serves to provide a seamless experience for the
end user and is mutually agreeable to LAUNCH and NBC. LAUNCH agrees that it
shall use commercially reasonable efforts to make the initial version of the
Co-Branded Area available for use by commercial users by no later than [ * ]
months following the Effective Date hereof, provided, however, that if the
Co-branded Area is not available within such [ * ] month period and such delay
is primarily caused by LAUNCH, NBC's promotional obligations described in
Section 3(c) shall be reduced in a pro rata manner to reflect the time that the
Co-branded Area is not available (e.g., the on-air promotional time shall be
reduced by [ * ] for every month that the Co-branded Area is not available).
(b) LAUNCH Production. Except for any NBC Material which NBC chooses to
provide for use hereunder, LAUNCH will be primarily responsible for creating or
obtaining all material to be placed in the Co-branded Area at its own expense.
LAUNCH will designate one of its own producers whose primary function will be to
act as the LAUNCH liaison for NBC's XXX.xxx production team as reasonably
requested at any time. The LAUNCH liaison will work with the NBC producers to
coordinate the production, orchestration and hosting of all music content and
information tied to
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SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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XXX.xxx and the relevant XXX.xxx entertainment sub-sites that NBC chooses to
make a part of XXX.xxx or an extension thereof using the Co-branded Area
pursuant to the procedures described herein. The LAUNCH liaison will follow the
reasonable direction of the NBC production team in creating or obtaining
material to be placed in the Co-branded Areas, and, in addition, will make
suggestions to the NBC production team regarding other material or services
possessed by or available to LAUNCH which would improve the Co-branded Area.
LAUNCH will create and update the Co-branded Area daily and on any time schedule
reasonably requested by NBC in connection with any television broadcast of
programming containing music-related guests, content or information. LAUNCH
agrees that it will use reasonable efforts to keep the Co-branded Area and
myLAUNCH free of computer viruses and material crash bugs in any form.
(c) Co-Branding. Each page of the Co-branded Area will be co-branded
with NBC Branding to be provided by NBC. All co-branding design decisions will
be at NBC's sole discretion; provided, however, that in no event shall the
myLAUNCH branding appear less than [ * ] the size of the NBC branding on any of
the pages or areas within the Co-branded Area (but not XXX.xxx) which are
co-branded pursuant hereto.
(d) Approvals. NBC shall pre-approve all uses of NBC Material by LAUNCH.
LAUNCH agrees that it shall place any and all NBC Material provided by NBC upon
the Co-branded Area whenever requested by NBC. LAUNCH agrees that NBC shall have
final approval regarding all aspects of the Co-branded Area, including, but not
limited to, any material to be placed thereon by LAUNCH and LAUNCH'S integration
of NBC Material into the Co-branded Area. NBC shall have sole discretion
regarding how it exercises such approval rights (except that such exercise
thereof may not involve any pre-approval of any LAUNCH Material) and may reject
any LAUNCH Material or presentation of NBC Material in the Co-branded Area for
any, or no, reason. All material in the Co-branded Area and any LAUNCH Material
which appears on XXX.xxx must comply with all NBC guidelines regarding the use
of intellectual property related to any NBC television show or talents' names,
likenesses and images and any other requirements related thereto of which LAUNCH
is informed by NBC. LAUNCH agrees to obtain NBC's prior written approval to any
use of any NBC Branding or other NBC Material by LAUNCH which is not
specifically contemplated by the terms hereof or provided by NBC for use by
LAUNCH.
(e) Registrations. LAUNCH agrees to allow all users to have access to
all areas and services of the Co-branded Areas without having to complete the
registration process offered to users of myLAUNCH. Such users will receive all
myLAUNCH features currently accessible in the myLAUNCH "Guest" mode which are
described in Exhibit A as well as the right to purchase Products. NBC
acknowledges that LAUNCH may make commercially reasonable efforts to encourage
all users to register with LAUNCH through promotional opportunities within the
Co-branded Area which are reasonably acceptable to NBC.
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SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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(f) User Tracking. LAUNCH will collect and provide any data and
statistics regarding usage, traffic, user feedback and users of the Co-branded
Area and myLAUNCH which NBC reasonably requests on a quarterly basis. In order
to provide such data and statistics, LAUNCH agrees to track users throughout the
Co-branded Area and the rest of myLAUNCH as well as any Orders placed by such
users.
(g) Product Purchasing Services. All users of the Co-branded Areas will
have the opportunity and right to purchase Products which are relevant or
related to the music content and information appearing on XXX.xxx or in the
Co-branded Areas. In addition, each page of the Co-branded Area shall contain a
clearly identifiable and prominent link to an area within the Co-branded Area or
within myLAUNCH which will permit users to purchase any or all of the Products.
In order to encourage such purchases, LAUNCH will xxxxxx transactions related
thereto by (i) describing procedure and information required to purchase the
Products, (ii) providing an order form and procedures which when completed and
followed will permit users to place an order ("ORDER") for the Products (iii)
placing hotlinks back to the Co-branded Areas from any order fufillment area of
myLAUNCH which commercial users may utilize once they have completed their
Orders. The descriptions and Order procedures in the Co-branded Areas will be
similar to those currently included elsewhere on myLAUNCH but shall be modified
by LAUNCH subject to NBC's reasonable approval in order to provide a seamless
experience between the Co-branded Area and the order fulfillment area of
myLAUNCH. LAUNCH shall provide all services relating to the ordering for and
sale of the Products, including, but not limited to, (i) the procurement of all
Products, (ii) the creation and maintenance of a reputable, reliable supplier
network for the fulfillment of all Orders, and (iii) the creation and
maintenance of a customer service system which insures the optimum fulfillment
of all Orders placed hereunder and which provides mechanisms for solving all
customer complaints and problems. LAUNCH's performance of each of these
functions will conform to at least reasonable commercial standards, and LAUNCH
recognizes that its failure to meet such standards shall constitute a material
breach of this Agreement.
3. NBC RESPONSIBILITIES.
(a) Editorial Guidance. NBC agrees to create, update and maintain
XXX.xxx and to cause its NBC. com production team to work with the LAUNCH
liaison to find acceptable methods of making appropriate links to the Co-branded
Areas accessible to users of XXX.xxx. Subject to the requirements of Section
3(b), LAUNCH acknowledges that NBC shall have sole discretion in determining
when and if it shall choose to include music content, information or services as
part of NBC. com or any part thereof and how any LAUNCH Material applicable to
such music content, information or services, if any, shall actually be
integrated into XXX.xxx. In addition, while NBC may choose, in its sole
discretion, to provide NBC Material to LAUNCH for use in the Co-branded Area, it
shall have sole discretion in determining how or whether such NBC Material may
actually be used by LAUNCH.
(b) Access to Co-branded Areas from XXX.xxx. NBC agrees that the
Co-Branded Area will be accessible through both (i) a link on the XXX.xxx home
page or a
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page directly accessible from the XXX.xxx home page (i.e., [ * ]) and (ii) some
form of a link on any XXX.xxx entertainment show sub-sites on which NBC chooses
to include music content, information or services, provided that if any sub-site
or page of XXX.xxx contains music content or information supplied by any of the
third parties described in 4(a)(i)-(iv), and either (A) the arrangements with
such party would prevent NBC from placing LAUNCH material on such sub-site or
page or (B) LAUNCH does not have, and is unable to create in a timely manner,
any music content or information that would be relevant to such page or
sub-site, then no link to myLAUNCH shall be required. NBC agrees that the size
and positioning of links to myLAUNCH on XXX.xxx or its sub-sites shall be [ * ].
In addition, NBC may choose, in its sole discretion, to provide any LAUNCH
material which is integrated into, or available via, any XXX.xxx page as part of
any interactive or digital television broadcast(s) which NBC chooses to do in
its sole discretion.
(c) On-Air Promotion. NBC agrees to reference myLAUNCH music-related
content, information and services available on XXX.xxx within appropriate NBC
promotion (on-air and online) for XXX.xxx, provided that such reference need not
contain any LAUNCH branding or specific textual descriptions. Any such
promotion, and the nature thereof, shall be at NBC's sole discretion. In
addition, NBC will use good faith efforts to provide a total of [ * ] for NBC.
com's on-air music-related promotions described above during the Initial Term of
this Agreement; provided, however, that if any on-air music-related promotions
promote services on XXX.xxx which are not provided by LAUNCH as permitted
pursuant to the terms of Section 4(b), such promotion shall not be counted when
determining the seconds of on-air music-related promotion delivered by NBC for
purposes hereof. Such on-air promotions may be placed in either late night,
prime-time, or Saturday morning television programming at NBC's sole discretion.
LAUNCH acknowledges that none of the promotion described above will occur during
the first [ * ] of the Term due to the "ramp-up" period described in Section
2(a). Failure to fulfill the promotional obligations described in this Section
3(c) shall not be deemed a material breach of this Agreement. However, if NBC
falls short of such obligations as measured after the first [ * ] of the Term
(i.e., NBC has provided less than a total of [ * ]) or at the end of the Initial
Term (i.e., NBC has provided less than a total of [ * ]) and if this Agreement
has not been terminated by either party as provided in Section 13 below, then
LAUNCH's sole remedy shall be, at LAUNCH's option, either (i) for NBC to return
to LAUNCH an amount of Purchased Shares of a value equal to the value of the
on-air promotion foregone, with the per share price of the Purchased Shares to
be returned equal to the Original Purchase Price, or (ii) for additional on-line
promotion to be provided by NBC over a one year period in a dollar amount equal
to the value of the promotion foregone, provided that NBC shall have sole
discretion in determining where, when and how often such on-line promotion shall
appear and whether
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
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the total volume of such on-line promotion will constitute an inappropriate
percentage of NBC's total on-line promotions. The value of the on-air promotion
foregone shall be based upon an average rate for all types of promotion of
[ * ] of air time. If this Agreement has been terminated pursuant to the terms
of Section 13, then LAUNCH shall have no further recourse for NBC's failure to
fulfill the terms of this Section 3(c).
4. EXCLUSIVITY.
(a) NBC Exclusivity. LAUNCH will be the exclusive provider of third
party music content and information and music purchasing services within the
entertainment areas of XXX.xxx, including, sub-sites thereof which contain any
NBC Internet entertainment shows, where NBC has chosen to include music related
content or information in its sole discretion; provided, however, that such
exclusivity shall not apply to banner advertising or any music content,
information or service provided or created by (i) NBC and its Affiliates, (ii)
any of NBC's or its Affiliates' contractors who provide or create such material
under the direction of NBC or the relevant Affiliates as long as NBC or the
relevant Affiliate obtains either ownership or the free right to use and exploit
such material and no Prohibited Sponsor receives online credit therefor, (iii)
NBC and its Affiliates' licensers which supply, directly or indirectly, such
content and information in connection with the underlying entertainment
properties included on XXX.xxx or (iv) any of NBC and its Affiliates' sponsors.
Notwithstanding the foregoing, (A) no sponsorship material of any Prohibited
Sponsors, other than banner advertising, which is provided directly to NBC shall
appear on the home page of XXX.xxx or any sub-pages of XXX.xxx and (B) NBC shall
not be prohibited from entering into agreements and arrangements with sponsors
that are not Prohibited Sponsors which may involve the inclusion of content and
information from the Prohibited Sponsors as part of such other sponsors'
material as long as the branding of such Prohibited Sponsors is not promoted, or
made apparent, on the home page of XXX.xxx or any XXX.xxx page which contains
music or information provided by LAUNCH; provided, however, that if such other
sponsor wishes to place any such music content or information on any page of
XXX.xxx which does not contain LAUNCH material, NBC agrees to make a good faith
effort to persuade such other sponsor to use music content and information
provided by LAUNCH rather than any Prohibited Sponsors if such other sponsor has
not already made arrangements to the contrary.
(b) Non-Exclusive Functional Areas. The parties agree that LAUNCH may be
a non-exclusive third party provider of the following functional or operational
services required by or associated with XXX.xxx subject to the conditions
described below:
(i) NBC may obtain instant messaging and personal web page
creation services from third parties, other than the Prohibited Sponsors, as
long as (1) music content and information is not the focus of such third
parties' services, and (2) NBC uses commercially reasonable efforts to include
LAUNCH Material or otherwise include LAUNCH in any such activities when they
relate to music;
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SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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(ii) NBC may obtain chatting services, both personal and
auditorium, from third parties, other than the Prohibited Sponsors, as long as
(1) music content and information is not the focus of such third parties'
services, (2) NBC agrees that it will utilize those myLAUNCH chatting services
which are accessible from the Co-branded Area in connection with a majority of
the XXX.xxx music related activities which NBC chooses to do, and (3) NBC uses
commercially reasonable efforts to include LAUNCH Material or otherwise include
LAUNCH in any such activities when they relate to music;
(iii) NBC may obtain e-mail services from third parties, other
than the Prohibited Sponsors, as long as (1) music content and information is
not the focus of such third parties' services, (2) the e-mail content created
and delivered by such third parties does not contain music related content and
information constituting more than [ * ] of the total amount of content, (3) NBC
uses commercially reasonable efforts to include LAUNCH Material or otherwise
include LAUNCH in any such activities when they relate to music;
(iv) NBC may obtain any other functional or operational services
which it requires, including, but not limited to video related services and
content, from third parties, other than the Prohibited Sponsors, as long as (1)
no such third party's service is primarily a music content and information
service (i.e., music content and information does not constitute more than
[ * ] of the total audio and/or video services or content offered by such third
party), (2) NBC does not promote the aspects of such third parties' services
which relate to music content and information on XXX.xxx (other than through
banner advertising and sponsorships paid for by third parties and subject to the
conditions of Section 4(a)), and (3) XXX.xxx does not contain any links to the
areas of such third parties' Internet sites, if any, which contain music content
or information other than a link to such parties' home pages, and (4) NBC uses
commercially reasonable efforts to include LAUNCH Material or otherwise include
LAUNCH in any such activities when they relate to music. Notwithstanding the
foregoing and subject to the terms of Section 4(a), the parties agree that
LAUNCH shall be the exclusive provider of personalized music content and
recommendation services and music audio content in connection with XXX.xxx.
(c) LAUNCH Exclusivity. LAUNCH agrees not to provide myLAUNCH content or
services to or enter into sponsorship arrangements (other than paid banner
advertising) with any Other Networks. In addition, LAUNCH will not provide
similar myLAUNCH content or services to any third-party interactive media
company acting as a content or service aggregator that redistributes myLAUNCH
content or services to the Other Networks. The parties agree that no material
provided by the Other Networks (except for banner advertising appearing anywhere
other than the Co-branded Area) or Prohibited Sponsors will appear on myLAUNCH,
including on the Co-branded Area.
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SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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5. OWNERSHIP AND EXPLOITATION.
(a) NBC Material and Derivative Material. NBC hereby grants LAUNCH a
non-exclusive, non-transferable, royalty-free license during the Term to use the
NBC Branding and any NBC Material and Derivative Material which NBC chooses to
provide to LAUNCH for use in the Co-branded Areas but only in the manner
specifically described and approved by NBC described herein. All use by LAUNCH
of any NBC Branding shall inure to the benefit of NBC and LAUNCH shall not
obtain any ownership interests in any NBC Branding. Any use by LAUNCH of the NBC
Branding shall be subject to NBC's then-applicable policies that have been
disclosed to the LAUNCH regarding the use, appearance and affixation of such
branding and the quality of any materials or products to which such branding is
affixed. LAUNCH acknowledges that any use by it of any NBC Material, including
any NBC Branding, or any Derivative Material shall be subject to prior review
and written approval by NBC which review and approval may be withheld by NBC in
its sole discretion as described in Section 2(d). As part of such review and
approval process, LAUNCH agrees to submit all uses of NBC Branding or NBC
Material to NBC for approval prior to use. LAUNCH agrees that it shall not use
the NBC Branding or the NBC Material in any manner, including for promotional
purposes, except as provided herein and that it shall not sublicense or
authorize any other person or entity to use the NBC Branding, the NBC Material
or any other material containing the voice or image of any NBC or NBC affiliate
television personality, without the prior written consent of NBC. Upon the
termination of this Agreement, LAUNCH will immediately remove such NBC Branding,
other NBC Material or Derivative Material from the Co-Branded Areas and return
any copies thereof to NBC. Except for the license described above, LAUNCH will
obtain no rights of any kind, including Intellectual Property Rights, whether
pre-existing or future, in the NBC Branding, other NBC Materials or the
Derivative Materials as a result of the activities described in this Agreement.
(b) LAUNCH Material. LAUNCH hereby grants NBC an unlimited, royalty-free
license in perpetuity to use any LAUNCH Material which LAUNCH provides to NBC
for placement upon XXX.xxx (not in the Co-branded Area) for any purpose. LAUNCH
also grants NBC an unlimited, royalty-free license in perpetuity to use the
LAUNCH Material which appears in the Co-branded Area in connection with any
archives related to XXX.xxx which NBC may choose to create; provided, however,
that (i) NBC will be responsible for its own costs associated with any such
archiving as well as any actual costs that LAUNCH may incur in providing such
LAUNCH Material to NBC on which NBC and LAUNCH agree in writing in advance and
(ii) if NBC earns any net income from providing the LAUNCH Material which
appears solely in the Co-branded Area (i.e., not on XXX.xxx) as part of such
archives, then the parties will mutually agree upon how the parties will share
and define such net income. All use by NBC of any LAUNCH Branding shall inure to
the benefit of LAUNCH and NBC shall not obtain any ownership interests in any
LAUNCH Branding. Any use by NBC of the LAUNCH Branding shall be subject to
LAUNCH's then-applicable policies that have
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been disclosed to NBC regarding the use, appearance and affixation of such
branding and the quality of any materials or products to which such branding is
affixed. Except for the licenses described above and below, NBC will obtain no
additional rights of any kind, including Intellectual Property Rights, whether
pre-existing or future, in the LAUNCH Branding or LAUNCH Materials as a result
of the activities described in this Agreement.
(c) Exploitation of Co-branded Areas. The parties agree that NBC shall
have the exclusive right to create, distribute and exploit in any way any
derivative or ancillary product or service which may be based upon the
Co-branded Areas which are co-branded with, or which contain, NBC Material or
Derivative Material; provided, however, that if NBC actually creates,
distributes or exploits such material or areas, NBC agrees to have good faith
negotiations with LAUNCH prior to completing the final arrangements or
agreements regarding such use in order to determine how LAUNCH may be
compensated for the LAUNCH Material which is actually used in such derivative or
ancillary product or service. The parties acknowledge that NBC may freely
exploit and distribute the NBC Material and Derivative Material which appears on
any co-branded myLAUNCH pages or elsewhere as well as any derivatives thereof
without any obligation of any kind to LAUNCH.
(d) Exploitation of LAUNCH Material. The parties further acknowledge
that LAUNCH may freely exploit and distribute the LAUNCH Material as well as any
derivatives thereof without any obligation of any kind to NBC, provided,
however, that LAUNCH will (i) agree to exclusively maintain the LAUNCH Material
within the Co-branded Areas for a period of one week after such material first
appears before using such LAUNCH Material for any other purpose permitted
hereunder and (ii) notify NBC in advance of each intended use or exploitation,
other than any use or exploitation over the Internet or in connection with the
LAUNCH CD-ROM magazine, of LAUNCH Material which has appeared on XXX.xxx or a
Co-branded Area so that the parties may enter into good faith discussions
regarding the possible mutually beneficial use or exploitation thereof.
6. ADVERTISING IN CO-BRANDED AREAS.
(a) Advertising Sales. LAUNCH will be responsible for selling all
advertising and sponsorship material appearing in the Co-branded Areas and will
pay NBC [ * ] attributable thereto. LAUNCH will use best efforts to sell such
advertising, and if any such inventory remains unsold, then each party shall
have the right to use [ * ] of such unsold inventory for its own purposes
subject to the restrictions described herein and the [ * ] of such unsold
inventory shall be used to promote other co-branded areas of myLAUNCH. NBC shall
have no right to share in any revenue collected by LAUNCH for advertising and
sponsorships appearing in areas of myLAUNCH other than the Co-branded Areas, and
LAUNCH shall have no right to share in any revenue collected by NBC for
advertising and sponsorships appearing anywhere in XXX.xxx.
[ * ] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
-11-
12
(b) Restrictions. NBC and LAUNCH will coordinate their advertising
efforts so that they can avoid confusion in the marketplace and elsewhere.
LAUNCH will (i) comply with all LAUNCH advertising standards as well as any and
all relevant NBC Advertising Standards, (ii) not act as a representative for NBC
or any NBC content or property in the advertising marketplace, (iii) will not
sell advertising appearing in the Co-branded Areas to any Other Network, and
(iv) not permit any such advertising to refer to, or imply an endorsement of any
kind by, NBC or any of NBC's properties, talent or licensors. In addition, all
such advertising and sponsorships shall be subject to NBC's approval as
described in Section 2(d) and will comply with any applicable NBC guidelines
regarding the use of intellectual property related to any NBC television show or
its talent's likenesses and images and any other requirement related thereto.
7. TRANSACTIONS AND OTHER REVENUE.
(a) Transactions. LAUNCH shall pay to NBC [ * ] of the total of (i) all
actual LAUNCH gross receipts from transactions occurring anywhere on myLAUNCH,
including the sale of any Products, attributable to users coming to myLAUNCH
through XXX.xxx or the Co-Branded Area, less only (ii) the direct, identifiable
and actual cost of goods sold, fulfillment expenses, discounts, bad debts, sales
taxes, and returns related to such transactions; provided that NBC will not
share in any revenue derived from the sale of any merchandise based on LAUNCH
Branding, including the LAUNCH CD-ROM magazine. If the total expenses exceed
revenues for such transactions, such amount may not be used to offset any
payments otherwise owed to NBC hereunder, including payments attributable to
advertising. Subject to the right to deduct such expenses from revenues as
described above, LAUNCH shall be solely responsible for the payment of any and
all sales and applicable taxes related to the Orders and sales of Products.
LAUNCH agrees that the revenue share described in this Section 7(a) is [ * ].
(b) Other Revenue. The parties agree that if LAUNCH derives any other
type of revenue from myLAUNCH other than that described in Sections 6 and 7,
then the portion of such revenue attributable to traffic coming from XXX.xxx and
the Co-branded Area shall be divided between the parties in a manner which is
mutually agreed upon by both parties at the time when LAUNCH begins to collect
such revenue.
8. PAYMENT AND REPORTING OBLIGATIONS.
(a) Payments. LAUNCH will remit to NBC, within thirty (30) days after
the end of each calendar quarter, an amount equal to the total fees owed to NBC
by LAUNCH pursuant to Section 6 and 7 for activities occurring during the
previous quarter. Such payment shall be accompanied by a statement which will
provide support for
[ * ] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
-12-
13
LAUNCH's calculation of such fees. Such support shall, at a minimum, provide
enough detail regarding each element involved in making the revenue calculations
in Section 6 and 7 (e.g., advertising revenues and each cost component related
thereto) to permit NBC to independently verify such calculations.
(b) Statements. In addition to the quarterly revenue statements, LAUNCH
shall render to NBC an additional quarterly statement which will include, at a
minimum, the following types of information:
(i) Details regarding the traffic to the Co-branded Area and
other areas of myLAUNCH Site who are directed there via either XXX.xxx or the
Co-branded Areas including the number of visitors to the Co-Branded Area and
myLAUNCH which originated from XXX.xxx, the number of separate subpages of the
Co-branded Area and myLAUNCH accessed by such visitors and the number of users
who placed Orders during the relevant period.
(ii) Descriptions of users of the Co-branded Areas and other
areas of myLAUNCH who are directed there via either XXX.xxx or the Co-branded
Areas, including the name, address, form of Order payment (e.g. Visa or AMEX),
if any, and electronic mail address of each user, the Products, if any, ordered
by such user, the sales price for the items in any Order placed by the user and
any other information gathered by LAUNCH regarding such users; provided,
however, that NBC shall not receive any such information which LAUNCH is
forbidden to disclose due to outstanding contractual arrangements or the
standard privacy policy which LAUNCH provides to users when it collects such
information.
(iii) Details regarding quality control in connection with any
Orders which will include, at a minimum, the number of complaints received by
LAUNCH in connection with the Orders during the relevant period and statistics
regarding the failure rate of LAUNCH's order fulfillment system as well as the
causes thereof.
(c) Audit Rights. LAUNCH shall at all times keep an accurate and
auditable account of the sources of revenue and expenses described in Sections 6
and 7 adequate to verify (i) any fees or other payments required pursuant to the
terms hereof, (ii) all Net Revenues, (iii) all transactions on myLAUNCH covered
by the terms hereof and (iv) any other information which LAUNCH is obligated to
provide NBC hereunder. LAUNCH shall retain such records during the Term of this
Agreement and for a period of one year following the expiration or termination
of the Agreement. NBC, its agents, or an independent auditor appointed by NBC,
shall have the right to inspect, audit and analyze such records up to two times
each year upon reasonable notice during regular business hours to verify
compliance with this Agreement. NBC shall bear the costs of such audits unless
(i) such audits reveal a discrepancy of more than five percent (5%) between the
payments paid by LAUNCH to NBC and the actual payments due pursuant to this
Agreement or (ii) in the event such audit reveals a material breach of the
Agreement, in which cases LAUNCH shall reimburse NBC for the reasonable cost of
such audit.
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9. REPRESENTATIONS AND WARRANTIES.
(a) LAUNCH. LAUNCH represents and warrants that (i) it has the right and
power to perform its obligations and to grant the rights granted herein; (ii)
its creation and operation of the Co-branded Area pursuant to this Agreement
will not violate any applicable laws or regulations; and (iii) the LAUNCH
Material, including the LAUNCH Branding, will be accurate and correct, will not
violate or infringe any Intellectual Property Rights, any right of publicity or
privacy or any other right of any entity or person or contain any material which
is libelous, slanderous or defamatory. LAUNCH further represents and warrants
that the Co-branded Area and myLAUNCH, including any software or hardware and
any customer services provided in connection therewith, (y) will be operated and
maintained with professional diligence and skill and in a manner consistent with
reasonable commercial standards, and (z) will operate substantially as described
in this Agreement, including any specifications and guidelines described.
Finally, LAUNCH represents, warrants and agrees that the Co-branded Area and
myLAUNCH do not currently, and shall not in the future, contain or link to Adult
Content. Notwithstanding the foregoing, NBC acknowledges and agrees that LAUNCH
cannot prevent users of myLAUNCH and the Co-branded Area from placing links to
Adult Content of users own choosing on users' customized "member" pages, but
LAUNCH agrees that it shall not promote any Adult Content or encourage users to
link thereto.
(b) NBC. NBC represents and warrants that: (i) it has the right and
power to perform its obligations and to grant the rights granted herein; (ii)
its activities related to the creation and operation of the Co-branded Area
pursuant to this Agreement will not violate any applicable laws or regulations;
and (iii) the NBC Material, including the NBC Branding, will be accurate and
correct, will not violate or infringe any Intellectual Property Rights, any
right of publicity or privacy or any other right of any entity or person, or
contain any material which is libelous, slanderous or defamatory.
10. INDEMNIFICATION AND DEFENSE.
(a) LAUNCH's Obligation. LAUNCH agrees to indemnify and hold harmless
NBC, its Affiliates, and their respective directors, officers, agents,
employees, shareholders, partners and members against and from any and all third
party claims, and any liability, loss and damages, including reasonable
attorneys' fees, related thereto, caused by or arising wholly or in part out of
(i) LAUNCH's violation of the representations and warranties described in
Section 9(a), (ii) LAUNCH's performance of the services described in this
Agreement, (iii) LAUNCH's acts or omissions including any breach of any of its
obligations under this Agreement and (iv) any transactions with users of the
Co-branded Areas or LAUNCH, including, but not limited to, any purchases of
Products by such users.
(b) NBC's Obligation. NBC agrees to indemnify and hold harmless LAUNCH
and its respective directors, officers, agents, employees, shareholders,
partners
-14-
15
and members against and from any and all third party claims, and any liability,
loss and damages, including reasonable attorneys' fees, related thereto, caused
by or arising wholly or in part out of (i) any violation of the representations
and warranties described in Section 9(b), (ii) NBC's performance of the services
described in this Agreement, (iii) NBC's acts or omissions including any breach
of any of its obligations under this Agreement.
(c) Control of Litigation. The indemnitor hereunder shall have full
control of the defense of such litigation and, subject to sub-section (d) below,
may settle, compromise or adjust the same, provided, however, that the
indemnitee, upon relieving the indemnitor in writing of the obligations imposed
hereunder for defense and indemnification, shall have the right, if it so
elects, to conduct such litigation at its own expense by its own counsel.
(d) Notice and Duration. The above obligations for defense and
indemnification shall be imposed only if (1) the indemnitee sends to the
indemnitor timely written notice of first service of process upon the indemnitee
and a timely written request to defend the litigation (such notice and request
shall be deemed timely if given within a reasonable length of time after receipt
of service by the indemnitee and a reasonable length of time prior to the date
by which first response to such process is legally required, considering all the
circumstances); (2) while such litigation is pending, the indemnitee upon
request, shall furnish to the indemnitor all relevant facts and documentary
material in the former's possession or under its Control, and shall make its
employees or other persons under its Control with knowledge of relevant facts
available to the indemnitor for consultation and as witnesses at their customary
places of business; and (3) the indemnitee does not enter into any settlement
relating to any claim for which it requests indemnification hereunder without
the approval of the indemnitor.
11. LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROSPECTIVE
PROFITS OR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES
BY REASON OF ANY FAILURE BY SUCH PARTY TO PERFORM ITS OBLIGATIONS PURSUANT TO
THIS AGREEMENT EXCEPT UNDER THE INDEMNITY PROVISIONS OF SECTION 10. NBC will
have no liability for the adequacy of performance of myLAUNCH OR THOSE PORTIONS
OF the Co-branded Areas WHICH ARE NOT CONTROLLED BY NBC.
12. TERM.
The initial term of this Agreement (the "Initial Term") will be for
twenty-six (26) months from the Effective Date. At the end of the Initial Term,
NBC shall have an option to renew this Agreement for an additional two (2) year
term upon the terms contained herein if it has provided at least 360 seconds of
on-air promotion as described in Section 3(c) (the "Renewal Term"). If NBC
chooses to exercise such option and has the right to do so, it shall provide
LAUNCH with
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written notice of such fact prior to the end of the Term. Upon receipt of NBC's
written notice regarding its choice to extend the Term, LAUNCH shall have the
right to either accept or reject NBC's offer in its sole discretion and shall
indicate its choice in a written response which will be delivered to NBC within
five business (5) days of LAUNCH's receipt of NBC's notice.
13. TERMINATION
(a) By NBC for Convenience. NBC can terminate this Agreement at any time
and for any reason by providing LAUNCH with [ * ] days prior written notice
subject to the Following terms:
(i) For any termination taking effect at any time within
[ * ] of the Effective Date, NBC shall return [ * ] of the Purchased Shares to
LAUNCH (i.e., [ * ] of Purchased Shares attributable to this Agreement) with the
price per share of the Purchased Shares equal to the Original Purchase Price;
(ii) For any termination taking effect at any time after
[ * ] from the Effective Date and up to the end of the Initial Term, NBC shall
return [ * ] of the Purchased Shares to LAUNCH (i.e., [ * ] of Purchased
Shares attributable to this Agreement) with the price per share of the Purchased
Shares equal to the Original Purchase Price.
(b) By NBC for Change in Control. In addition, if the ownership of a
significant portion of the equity of LAUNCH or all or substantially all of the
assets of LAUNCH, is transferred at any time during the term, then NBC shall
have the option of terminating this Agreement on five (5) business days prior
written notice without returning any of the Purchased Shares if the ownership of
such equity or assets are transferred to any (i) Other Network, (ii) any
provider of Adult Content or (iii) any other party with whom NBC reasonably
chooses not to be associated, other than LAUNCH's current shareholders,
including all purchasers of Series D Preferred Stock of LAUNCH. Transfer of any
amount of such equity or assets shall be deemed significant when the parties
described in (i) and (ii) in the previous sentence are involved, but such figure
shall be deemed to be at least [ * ] of LAUNCH's equity when the parties
described in (iii) in the previous sentence are involved.
(c) By LAUNCH for Convenience. LAUNCH may terminate this Agreement at
any time and for any reason by providing LAUNCH with [ * ] prior written notice
subject provided that in the case of such termination NBC shall be entitled to
retain all of the Purchased Shares.
(d) By LAUNCH for Failure to Fulfill Promotional Commitments. If NBC
does not provide at least [ * ] of on-air promotion as described in Section
above by the end of the first [ * ] months of this Agreement, LAUNCH may, in its
sole discretion, terminate this Agreement by providing NBC with five (5) days
prior written notice of its intention and require NBC to return [ * ] of the
Purchased
[ * ] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
-16-
17
Shares with the price per share of the Purchased Shares equal to the Original
Purchase Price. LAUNCH will have the ability to exercise this termination right
for a period of [ * ] following the end of the first [ * ] months of this
Agreement.
(e) Due to Material Breach by NBC. In the event that NBC commits a
material breach of a material obligation of this Agreement, LAUNCH shall provide
NBC with written notice of such breach, and if NBC fails to cure such breach
within thirty (30) days of receipt of such written notice, this Agreement shall
immediately terminate at the end of such cure period. Upon a termination
pursuant to this Section 13(e), NBC shall return the Purchased Shares, if any,
which it would have been otherwise required to return pursuant to the terms of
Section 13(a), calculated as of the effective date of such termination with the
price per share of the Purchased Shares equal to the Original Purchase Price.
This right of termination shall be in addition to all other rights and remedies
at law or in equity.
(f) Due to Material Breach by LAUNCH. In the event that LAUNCH commits a
material breach of a material obligation of this Agreement, which shall include
any distribution of Adult Content in the Co-branded Areas or myLAUNCH in
violation of Section 9(a), NBC shall provide LAUNCH with written notice of such
breach, and if LAUNCH fails to cure such breach within thirty (30) days of
receipt of such written notice, this Agreement shall immediately terminate at
the end of such cure period. Upon a termination pursuant to this Section 13(e),
NBC shall be entitled to retain all of its Purchased Shares. This right of
termination shall be in addition to all other rights and remedies at law or in
equity.
14. CONFIDENTIALITY.
(a) Restrictions on Use and Disclosure. Each party shall protect the
other's Confidential Information from unauthorized dissemination and use with
the same degree of care that such party uses to protect its own like
information. Neither party will use the other's Confidential Information for
purposes other than those necessary to directly further the purposes of this
Agreement. Each party will use its best efforts not to disclose to third parties
the other's Confidential Information without the prior written consent of the
other party. Except as expressly provided in this Agreement, no ownership or
license rights are granted in any Confidential Information.
(b) Limitations. The other provisions of this Agreement notwithstanding,
either party will be permitted to disclose the terms and conditions of this
Agreement to their outside legal and financial advisors and to the extent
required by applicable law; provided however that before making any such
required filing or disclosure, the disclosing party shall first give written
notice of the intended disclosure to the other party, within a reasonable time
prior to the time when disclosure is to be made, and the disclosing party will
exercise best efforts, in cooperation with the other party, consistent with
reasonable time constraints, to obtain confidential treatment for all non-public
and
[ * ] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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sensitive provisions of this Agreement, including without limitation dollar
amounts and other numerical information.
15. MISCELLANEOUS.
(a) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York (excluding the laws regarding
conflict of laws questions).
(b) Relationship of the Parties: It is understood that this Agreement
does not create any partnership, joint venture or employment relationship
between the parties, that both parties are acting as independent contractors
with respect to each other, and that none of the employees of either party shall
be deemed to be employees of the other party for any purpose. Each party shall
pay and be solely responsible for all contributions, taxes and premiums payable
under any and all applicable, laws, rules or regulations with respect to
employees.
(c) Severability. If any provision of this Agreement shall be found by a
court of competent jurisdiction to be invalid or unenforceable, such finding
shall not affect the validity or enforceability of this Agreement as a whole or
of any other part of this Agreement. Any such provision shall be enforced to the
maximum extent permissible. In the event such provision is considered an
essential element of this Agreement, LAUNCH and NBC agree to promptly negotiate
a replacement thereof.
(d) Notices. Any notice or other communication under this Agreement
shall be sufficiently given if given in writing and delivered by hand delivery,
or in lieu of such personal service, twenty-four (24) hours after delivery to a
courier service, to the addresses listed below. Either party may designate a
different address by giving notice of change of address in the manner provided
above.
To LAUNCH: To NBC:
2 Way Media, Inc. NBC Multimedia, Inc.
0000 Xxxxx Xxxxxx, #000 00 Xxxxxxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxxx Xxxxxxx
Fax: (000) 000-0000 Fax: (000) 000-0000
With a copy to:
National Broadcasting Company, Inc.
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Legal Department
Fax: (000) 000-0000
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(e) Survival. Sections 1, 5, 8(c), 9, 10, 11, 13, 14 and 15 will survive
the expiration or termination of this Agreement.
(f) Assignment. Either party shall have the right to freely assign or
transfer, in whole or in part, any of its rights, interests, benefits or
obligations hereunder, including the Agreement itself, to any party in its sole
discretion. Notwithstanding the foregoing, LAUNCH may not assign this Agreement
to any of the parties described in subsections (i)-(iii) of Section 13(b), and
NBC may not assign this Agreement to any Prohibited Sponsor. This Agreement
shall be fully binding upon, inure to the benefit of and be enforceable by the
parties hereto and their respective successors and assigns.
(g) Waiver/Modification. No modification or amendment to, or waiver of,
this Agreement will be binding and valid unless it is in writing and executed by
the party against whom enforcement is sought. No waiver of a breach of any
provision of this Agreement or of any default hereunder shall be deemed a waiver
of any other breach or default of this Agreement.
(h) Force Majeure. Neither party shall be liable for any delay or
failure in performance of any part of this Agreement from any cause beyond its
control and without its fault or negligence including, without limitation, acts
of nature, acts of civil or military authority, embargoes, epidemics, terrorist
acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents,
floods, work stoppages, equipment failure, power blackouts, volcanic action,
other major environmental disturbances, unusually severe weather conditions,
inability to secure products or services of other persons or third party
suppliers of such products and services, or transportation facilities or acts or
omissions of transportation carriers. No delay or other failure to perform shall
be excused pursuant to this Section 15(h) unless such delay or failure and
consequences thereof are beyond the control and without the fault or gross
negligence of the party claiming excusable delay or other failure to perform. In
the event of any such excused delay in the performance of a party's
obligation(s) under this Agreement, the due date for the performance of the
original obligation(s) shall be extended by a term equal to the time lost by
reason of the delay. In the event of such delay, the delaying party shall
perform its obligations at a performance level no less than that which it uses
for its own operations. In the event of a labor dispute or strike, the parties
agree to provide service to each other at a level equivalent to the level they
provide themselves during such dispute or strike.
(i) Construction. If for any reason a court of competent jurisdiction
finds any provision of this Agreement, or portion thereof, to be unenforceable,
that provision of the Agreement will be enforced to the maximum extent
permissible so as to effect the intent of the parties, and the remainder of this
Agreement will continue in full force and effect. Failure by either party to
enforce any provision of this Agreement will not be deemed a waiver of future
enforcement of that or any other provision. This Agreement has been negotiated
by the parties and their respective counsel and will be interpreted fairly in
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accordance with its terms and without any strict construction in favor of or
against either party.
(j) Entire Agreement. The provisions of this Agreement set forth the
entire agreement and understanding between LAUNCH and NBC as to the subject
matter hereof and supersedes all prior agreements, oral or written, and all
other communications between LAUNCH and NBC relating to the subject matter
hereof, other than the Securities Purchase Agreement, the Warrant, the NBC-IN
Agreement and the Non-Disclosure Agreement between the parties. Nothing in this
Agreement, express or implied, is intended to confer upon the General Electric
Capital Corporation ("GECC"), Xxxxx & Company, Incorporated ("Xxxxx") or any
other party other than the parties hereto and their respective successors and
assigns, any rights, remedies, obligations, or liabilities under or by reason of
this Agreement. The parties acknowledge that certain acts or omissions of NBC
hereunder may trigger certain terms contained in a warrant issued to GECC by
LAUNCH and a warrant issued to Xxxxx, but NBC's acts or omissions hereunder
shall not give GECC or Xxxxx any right or cause of action against NBC or its
affiliates therefor.
(k) Counterparts. This Agreement may be executed in counterparts, each
of which shall constitute an original but all of which, when taken together,
shall constitute one agreement, and shall become effective when one or more such
counterparts have been signed by each of the parties and delivered to the other
party.
This Agreement is accepted and agreed by:
NBC Multimedia, Inc. 2 Way Media, Inc.
By: By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------- --------------------------------
Name: Name: Xxxxxx X. Xxxxxx
------------------------------------ -------------------------------
Title: Title: President
----------------------------------- ------------------------------
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This Agreement is accepted and agreed by:
NBC Multimedia, Inc. 2 Way Media, Inc.
By: /s/ XXXXXX By: /s/ XXXXXX X. XXXXXX
-------------------------------------- --------------------------------
Name: Xxxxxx Name: Xxxxxx X. Xxxxxx
------------------------------------ -------------------------------
Title: V.P. Title: President
----------------------------------- ------------------------------
22
EXHIBIT A
Description of Services in myLAUNCH Guest Mode
Music news
Music features/interviews
Concert news and features
Album reviews
New release and upcoming release information
Certain artist information (i.e. biographies, discography)
Certain album information (i.e. song list liner notes)
