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EXHIBIT 10.2
TRADEMARK LICENSE AGREEMENT
This Trademark License Agreement ("Agreement") is entered into as of
November 16, 2000, between National Broadcasting Company, Inc., a Delaware
corporation ("NBC"), and ValueVision International, Inc., a Minnesota
corporation ("VV").
WHEREAS, NBC owns rights in and to certain trademarks, service marks and
domain names, including without limitation "NBC" and the "NBC Peacock" logo;
WHEREAS, VV currently operates a 24 hour/7 day per week cable television
program service, consisting primarily of home shopping and transactional
television and an Internet web site which offers for sale products substantially
similar to those advertised on such cable television program service;
WHEREAS, NBC desires to grant, and VV desires to obtain, a license to use
certain NBC trademarks, service marks and domain names to rebrand its businesses
and corporate name, subject to the terms and conditions set forth herein; and
WHEREAS, VV agrees that this Agreement is not intended to adversely impact
NBC's core businesses, including without limitation broadcast and Multichannel
Television (as defined herein) and the online distribution of content, even if
the economic model for such businesses evolves over time from customary
advertising to a more direct response or product placement model;
NOW, THEREFORE, in consideration of the mutual agreements and
understandings set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1 - DEFINITIONS
For purposes of this Agreement, in addition to the capitalized terms
defined elsewhere herein, the following terms shall have the following
respective meanings:
1.1 Advertising. (a) Communications, content and materials in any current
or future medium, manner or form that intend to raise consumer or trade
awareness and are disseminated by any means of advertising, marketing,
publicity, promotion, or identification, whether on a paid basis or free of
charge, including, but not limited to, magazines, newspapers, point of purchase,
outdoor and transit billboards and signage, speaker podiums, building and other
signage, packaging, direct mail materials, commercials, publicity and print
materials, public relations materials, press kits, television (including
infomercials), radio and other audio and video outlets (including home video),
computer, online and interactive services and networks (including
click-throughs, banner ads and direct response advertising), theatre, on-air
graphics (including channel identification or interstitial elements), classified
advertisements; and (b) any other medium or vehicle used for advertisement,
publicity or promotion now known or hereafter created that is reasonably
acceptable to NBC and consistent with the terms and conditions herein. Advertise
shall mean to disseminate, display, distribute or publish Advertising.
1.2 Advertising Materials. Shall have the meaning set forth in Section 6.1.
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1.3 Affiliate. With respect to any Person, any Person, directly or
indirectly, Controlling, Controlled by or under common Control with such first
Person.
1.4 Cable Shopping Service. A nationally-distributed, full-time
Multichannel Television service that has as its exclusive or predominant purpose
the retail sale to consumers of a broad range of products and shopping-related
services across numerous categories from a variety of sources/producers (i.e.,
at least as many categories and sources/producers as offered via the current VV
Cable Shopping Service), including any converged Online Shopping Service.
1.5 Change of Control. The occurrence of any of the following with respect
to VV:
(a) Any Person or group (within the meaning of Rule 13d-1 under the
Securities Exchange Act of 1934) becomes the beneficial owner of securities
representing more than 40% of the aggregate voting power of VV's then
outstanding voting securities, as a result of a tender offer or exchange offer,
open market purchases, privately negotiated purchases or otherwise;
(b) Any NBC Competitor becomes the beneficial owner of VV securities
representing greater aggregate voting power than the VV securities beneficially
owned by NBC at such time, whether as a result of a tender offer or exchange
offer, open market purchases, privately negotiated purchases or otherwise;
provided, however, that if, during the period from the effective date hereof to
the date of calculation, NBC (or any Affiliate of NBC to whom NBC has
transferred shares of VV capital stock ("NBC Transferred Shares")) disposes of
more VV shares (or in the case of an NBC Affiliate, only NBC Transferred Shares)
than it acquires, the difference between the shares disposed and the shares
acquired shall be added back to NBC's holdings for purposes of determining
beneficial ownership pursuant to this clause (b);
(c) Any merger, consolidation or other transaction immediately following
which the holder of common equity securities of such Person immediately prior to
such transaction does not own securities representing more than 50% of the
aggregate voting power of the outstanding voting securities of the resulting or
surviving entity; or
(d) A majority of VV's Board of Directors consists at any time of
individuals other than (x) the current directors and (y) Persons recommended to
become a director by a majority of the current directors or by directors so
recommended; or
(e) The sale, exchange or other disposition of all or substantially all of
VV's assets.
1.6 Control. With respect to a Person: (A) having the power to elect or
appoint, through ownership, membership or otherwise, either directly or
indirectly, a majority of such Person's governing body, (B) owning or
controlling the right to vote a majority number of the shares of such Person's
voting stock or other voting interest, or (C) having the right to direct the
general management of the affairs of such Person by contract or otherwise.
1.7 Excluded Affiliates. (i) the CNBC cable networks worldwide, XXXX.xxx,
MSNBC Cable, XXXXX.xxx; provided, however, that any such entity shall be an
Excluded Affiliate only for so long as such entity does not engage in the retail
sale of products and shopping-related services to consumers as the exclusive or
predominant portion of its business
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(excluding financial, business, insurance and related services); (ii) NBC's
owned and operated television stations; provided, however, that each such
station shall be an Excluded Affiliate only for so long as each station's
website or other online activities of each station are directed predominantly at
such station's local market; (iii) NBC Sports; (iv) the online site for NBC's
bricks and mortar retail business; and (v) NBC Internet, Inc. ("NBCi").
1.8 Exhibition. Shall have the meaning set forth in Section 2.1.
1.9 Interactive Delivery. The delivery of content for use by an end user to
a monitor or viewing screen, whereby such delivery occurs by means of telephone
lines, cable television systems, optical fiber connections, cellular phones,
satellites, electronic media, wireless broadcast or other means of transmission
now known or hereafter devised, provided that the end user has the ability to
effect substantive content changes during its use via voluntary, selective
manipulation. By way of example, "Interactive Delivery" includes the Internet,
because a user can selectively manipulate which Internet pages to view within a
site, but excludes network television, in the case where a user cannot affect
the substantive content being broadcast by a station at a particular time.
1.10 Law. Any foreign, international, multinational, federal, state or
local law, rule, regulation, directive, injunction, standard, code, limitation,
restriction, condition, prohibition, notice, demand or other requirement,
determination, decision, order or ruling of a court, other governmental
authority.
1.11 Licensed Advertising. Shall have the meaning set forth in Section 6.2.
1.12 Licensed Services. Cable Shopping Services and the Online Shopping
Services.
1.13 Multichannel Television. Any transmission of video and audio to
individual or multiple television receivers by cable, wire or fiber, cable
television, master antenna, satellite master antenna, multi-channel multi-point
distribution services or microwave system, or direct-to-home or direct broadcast
satellite services; provided, however, that Multichannel Television shall not
include transmission by Interactive Delivery.
1.14 NBC Competitor. Any Person, division or operation (and all Affiliates
thereof) in which NBC does not have direct or indirect ownership of 5% or more,
a principal business of which is the distribution of (i) broad-based audio
and/or visual content and or (ii) video content, in each case through a monitor
or viewing device (whether the distribution is through broadcast or cable,
optical fiber connections, satellite, wireless broadcast or any other means of
transmission now known or hereafter devised), and whether on one or more
channels, across several different types of content (such as news, business
news/finance, sports, comedies, talk shows, movies, dramas or children's
programming) on a scale and in a territory such that the business could
reasonably be considered to compete with NBC and its Affiliates. The parties
agree that, as of the date hereof, the NBC Competitors include (a) Time Warner,
CBS/Viacom, News Corp., Disney, and USA Networks, and (b) America Online,
Microsoft, Lycos and Yahoo; provided, however, if NBC's ownership of NBCi or any
successor, falls below 15% on a fully diluted basis, America Online, Lycos,
Yahoo and/or any other Person, division or operation whose principal business is
the online distribution of original content shall no longer be deemed
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"NBC Competitors" unless at that time they fall within definition (ii)
referenced in sentence one of this paragraph.
1.15 NBC Marks. The trademarks and service marks "NBC" in block letters,
the NBC Peacock logo and the NBC Chimes.
1.16 New Marks. The trademarks, service marks, logos, corporate names,
trade names and/or domain names specifically set forth on Schedule A and as
otherwise mutually and reasonably agreed by NBC and VV from time to time after
the date hereof for use in connection with the VV Permitted Businesses.
1.17 Online Shopping Service. A nationally-targeted, full-service (i.e.
consumer interface, inventory and fulfillment), online destination that has as
its exclusive or predominant purpose the retail sale to consumers of a broad
range of products and shopping-related services across numerous categories from
a variety of sources/producers (i.e., at least as many categories and
sources/producers as offered via the current VV Online Shopping Services and
competing online home shopping services), including any converged Cable Shopping
Service.
1.18 Permitted Businesses. Cable Shopping Services, Online Shopping
Services and any other permitted lines of businesses set forth on Schedule B
hereto.
1.19 Person. Any individual, corporation, limited liability company,
general or limited partnership, joint venture, association, joint stock company,
trust, unincorporated business or organization, government or agency or
political subdivision thereof, or other entity, whether acting in an individual,
fiduciary or other capacity.
1.20 Standards and Practices. NBC's Broadcast Standards and Practices as in
effect from time to time and as determined by NBC in its sole discretion, in
each case as NBC would apply to any material or content that is broadcast on NBC
Television Network or delivered over the Internet, as the case may be.
1.21 Term. Shall have the meaning set forth in Section 9.1.
1.22 Territory. The world, subject to Section 3.
1.23 VV Cable Shopping Service. The Cable Shopping Service that is
presently known as "ValueVision Television" and is to be rebranded with the New
Xxxx hereunder, and including (i) part-time carriages of ValueVision Television
and (ii) programs produced by ValueVision Television, and any segments or
extensions of ValueVision Television.
1.24 VV Online Shopping Service. The Online Shopping Service that is
currently known as XXXX.xxx and currently located on the World Wide Web of the
Internet at xxxx.xxx.
1.25 VV Permitted Businesses. The VV Cable Shopping Service, the VV Online
Shopping Service and VV's operation of the permitted lines of businesses set
forth on Schedule B.
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SECTION 2 - GRANT OF LICENSE
2.1 Grant. Subject to the terms and conditions contained herein, NBC hereby
grants to VV, and VV hereby accepts from NBC an exclusive, non-transferable
(except as provided in Section 12.1) license in the Territory (the "License") to
use the New Marks: (a) in connection with the dissemination, display,
distribution, exhibition, transmission and other publication, Licensed
Advertising, marketing and promotion ("Exhibition") of the VV Permitted
Businesses; (b) in connection with the sale of goods and services as part of
VV's conduct of the Permitted Businesses; (c) as VV's new corporate and trade
name; and (d) as part of new domain name (s) and URL(s). After the date hereof,
the parties shall mutually agree on the selection of the New Marks, and VV shall
not use any trademarks, service marks, domain names, logos or other source
indicators owned or controlled by NBC or its Affiliates in connection with the
VV Permitted Businesses before such mutual agreement. Notwithstanding anything
to the contrary set forth herein, VV agrees that this Agreement is not intended
to have any restrictive effect on or to limit in any way NBCi or its business
operations.
2.2 Sublicenses. (a) Subject to the terms and conditions contained herein
and the prior written consent of NBC (which shall not be unreasonably withheld
or delayed), during the Term, VV may sublicense the License only as follows: (i)
as required to create Licensed Advertising; (ii) to use the New Marks in
connection with VV's conduct of VV Permitted Businesses, without any changes
thereto, and (iii) in any program guide or other channel listing containing the
VV Cable Shopping Service.
(b) Any purported sublicense granted without NBC's prior approval shall be
null and void ab initio and of no force and effect. To fulfill its obligations
regarding NBC's approval, VV and NBC shall cooperate in good faith to create a
form of sublicense agreement to be used with authorized sublicensees. If NBC
approves such form, VV need not resubmit the form for approval when it is
executed with new sublicensees; provided that no non-trivial changes are made to
such form and provided further that VV provides NBC with all executed
sublicenses promptly thereafter.
2.3 Restrictions. (a) VV shall not use (i) the New Marks other than as
expressly authorized hereunder, and (ii) any marks owned or controlled by NBC,
including the NBC Xxxx, other than the New Marks as expressly authorized
hereunder. Without limiting the generality of the foregoing, without the prior
written consent of NBC, which may be withheld in its sole discretion, VV shall
not use the New Marks (i) in connection with any goods, services or programs
other than the VV Permitted Businesses, (ii) on or in connection with any
specific goods or merchandise; (iii) for any other branding, merchandising or
related activities and/or (iv) in connection with sponsoring or hosting, either
directly or indirectly, any online auction, market, bazaar or any other forum in
which consumers, not established retail businesses, are the source of sold
merchandise.
(b) VV further agrees that it will not enter into any Co-Branding Agreement
using the New Marks without NBC's written consent, which may be withheld in its
sole discretion. For purposes of this Section 2.3(b) alone, a "Co-Branding
Agreement" shall mean an
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arrangement pursuant to which one party authorizes another party to use the
brands or trademarks of the first party in connection with the other party's
property, products or services. Notwithstanding the foregoing, the parties
understand and agree that the distribution (including, without limitation, video
streaming) and promotion of solely the content of the Licensed Services on the
Internet, or any successor technology, through a third party distributor does
not constitute a Co-Branding Agreement, so long as VV does not grant to any such
third party distributor any use of the NBC Marks other than for the limited
purpose of distributing and promoting through customary promotional technologies
and techniques now or hereafter developed the content of the Licensed Services
and the properties on which they appear, but only to the extent such promotion
relates directly to the availability of the Licensed Services on such
properties.
(c) VV agrees to use the New Marks exactly as such words, terms or logos
appear on Schedule A, and not to modify, stylize, translate or combine them with
other trademarks, service marks, domain names, logos or source indicators
without NBC's prior written consent, which may be withheld in its sole
discretion.
2.4 Retention of Rights. All rights not expressly granted to VV herein are
expressly reserved to NBC. Without limiting the generality of the foregoing and
except as provided in Section 3:
(a) NBC and its Affiliates retain the right to engage in any business
anywhere in the world; provided, however, that NBC and its Affiliates (other
than the Excluded Affiliates) shall not use the New Marks in connection with the
Permitted Businesses during the Term. This right shall include, without
limitation the right to use the NBC Xxxx (but not the New Marks) anywhere in the
world for any and all purposes other than branding Licensed Services, including:
(i) Advertising products and services, (ii) creating, producing, licensing or
Exhibiting television, online or interactive programming, including interactive
and enhanced television, and (iii) engaging in other electronic commerce, other
Online Shopping Services and "brick and mortar" retail services. For the
avoidance of doubt, VV acknowledges that NBC and its Affiliates (excluding the
Excluded Affiliates) may use the NBC Xxxx (but not the New Xxxx) to sell, offer
to sell, or Advertise proprietary or third-party merchandise on television
(including enhanced or interactive television) or online, and that such
activities shall not violate the exclusivity of the License provided that such
activities are not actually Licensed Services.
(b) For the avoidance of doubt, without limiting the generality of the
foregoing, the Excluded Affiliates may use the NBC Xxxx (but not the New Marks)
for any legitimate business purpose, including in connection with Licensed
Services, anywhere in the world.
SECTION 3 -TERRITORY
3.1 Territory. The territory of this License shall be worldwide.
3.2 Territory Outside the United States. (a) During the Term, in any
Territory which falls outside the United States where VV conducts a Licensed
Service, VV and NBC agree that VV must meet certain minimum performance targets,
which shall be mutually agreed on by the parties for any given country or
jurisdiction as further described below. If (i) VV is not engaged
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in a Licensed Service or is engaged in a Licensed Service which does not meet
the applicable performance targets in a jurisdiction (other than a jurisdiction
in the United States) within 12 months of the date of the parties' mutual
agreement on such performance target for such country or jurisdiction, and (ii)
NBC has a proposed bona fide use for the NBC Marks branding a Licensed Service
in such jurisdiction or has received a bona fide offer from a third party to use
the NBC Marks branding a Licensed Service in such jurisdiction, and (iii) NBC
desires to use the NBC Marks for such use in such jurisdiction or license the
NBC Marks to such third party in such jurisdiction, then NBC may provide written
notice to VV describing in reasonable detail such proposed use or such proposed
license of the NBC Marks. VV shall have 30 days to notify NBC that VV has a
proposed bona fide use and can demonstrate in reasonable detail a business plan
for use of the New Marks in such jurisdiction within four months from the date
of such notice. Upon such notice, the parties shall mutually agree on minimum
performance targets and dates for VV's operation there and execute an agreement
with respect thereto (the "Performance Targets'). If VV does not timely notify
NBC in this regard, if the two parties cannot negotiate such agreement in good
faith in a reasonable time, or as otherwise pursuant to such negotiated
agreement, such country or jurisdiction shall be removed from the definition of
"Territory" hereunder and NBC shall have the right (but not the obligation) to
use or allow others to use the NBC Marks to engage in any Licensed Service in
such new country or jurisdiction. The provisions of this Section 3 shall not be
construed so as to limit or qualify in any manner the retention of rights set
forth in Section 2.4 herein with respect to the Excluded Affiliates. If VV does
not respond to NBC within 30 days of receiving NBC's written notice of proposed
use, or the proposed license of the NBC Marks within the jurisdiction, then NBC
shall be entitled to use the NBC Marks, or license the NBC Marks, within such
jurisdiction as proposed in the notice to VV.
(b) In the event that a country or jurisdiction has been removed from the
definition of "Territory" hereunder pursuant to operation of Section 3.2(a) (a
"Removed Territory"), and VV subsequently has a proposed bona fide use of the
New Marks for Licensed Services in such Removed Territory and can demonstrate in
reasonable detail a reasonable business plan for such use within the next twelve
(12) months, then VV may provide written notice to NBC of such proposed use. NBC
shall then be required to demonstrate to VV that the users of the NBC Marks
engaging in Licensed Services in such Removed Territory, no later than 12 months
following the date of receipt of written notice from VV, are meeting the
applicable minimum performance targets for such Removed Territory as were
mutually agreed between VV and NBC prior to such Removed Territory being removed
from the definition of Territory; or, if no minimum performance targets were
mutually agreed between NBC and VV prior to such removal, then the applicable
performance target for purposes of this subsection 3.2(b) shall be the last
performance target that had been proposed by NBC prior to the determination to
remove the Removed Territory from the definition of Territory. If NBC is unable
to demonstrate that either NBC or the applicable users of the NBC Marks in the
Removed Territory are meeting the applicable minimum performance targets at the
end of the 12-month period, then the Removed Territory shall be again included
in the definition of Territory, and VV shall have the rights with respect to
such formerly Removed Territory as otherwise set forth in this Agreement,
including without limitation, Section 3.2(a).
SECTION 4 - CONSIDERATION
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As consideration for the License, NBC (i) shall receive, inter alia, a
warrant to purchase six million (6,000,000) shares of common stock, par value
$0.01 per share, of VV at a price of $17.375 per share, and (ii) NBC and VV
shall enter into the Warrant Purchase Agreement in the form attached hereto as
Exhibit A, Amended and Restated Registration Rights Agreement in the form
attached hereto as Exhibit B, and Amendment No. 1 to the Shareholder Agreement
dated as of April 15, 1999 among VV, NBC and GE Capital Equity Investments, Inc.
("GECEI") in the form attached hereto as Exhibit C. No additional royalties
shall be due to NBC hereunder.
SECTION 5 - VV'S OBLIGATIONS
5.1 Licensed Services. VV and NBC agree that (i) the VV Cable Shopping
Service shall consist of at least one full-time, 7 day per week Multichannel
Television programming service, (ii) the VV Online Shopping Service shall
consist of a continuously broadcast Online Shopping Service that complies with
the service level standards set forth on Schedule D, and (iii) from and after
the date on which VV commences commercial use of the New Marks, VV shall use
only the New Marks for branding any Licensed Services, and shall have the right,
but not the obligation to use the New Marks in connection with other VV
Permitted Businesses. For so long as the VV corporate name includes the New
Marks, without the prior written consent of NBC, which may be withheld at its
sole discretion, VV shall not, either directly or indirectly, own, operate,
acquire or expand its business to include any businesses other than the VV
Permitted Businesses.
5.2 Compliance. VV shall, at its sole expense, ensure that the operation of
the VV Permitted Businesses (including the Advertising and Exhibition of all
proprietary and third-party content therein) complies at all times with (a) all
Laws materially affecting the Licensed Services or the VV Permitted Businesses
that VV is conducting at the time; and (b) sound industry practice, including
those respecting (i) intellectual property rights (including copyrights, patents
and trademarks, moral rights, publicity and privacy rights); (ii) obscenity,
pornography, profane and indecent material; (iii) illegal, abusive, threatening
or harassing speech or content; (iv) advertising, sweepstakes, lotteries and
gambling; (v) defamation, libel, slander and disparagement; and (vi) consumer
protection, fraud, trade practices, direct marketing and solicitation in any
media (including facsimile, telephone and mail) and consumer data, disclosure
and privacy; and (c) the GE Integrity Policy, NBC's Privacy Policies and
Standards and Practices (each of which are set forth on Schedule E) and (d)
following reasonable prior notice to VV, any other related NBC guidelines or
policies issued from time to time in its reasonable discretion that are
generally applicable to NBC and its Affiliates.
5.3 Quality of Services. VV shall (i) operate first-class VV Permitted
Businesses (including the sale of products and services, Advertising and
Exhibition of content) at a level of quality, performance, customer satisfaction
and utility consistent with the current reputation of NBC; (ii) Exhibit and sell
only the highest quality products from reputable manufacturers and create only
the highest quality Advertising Materials; (iii) not Exhibit or sell products or
create Advertising Materials which, taken as a whole, are of lesser quality than
those products currently sold on, or the Advertising Materials currently
affiliated with, the VV Cable Shopping Service and VV Online Shopping Service;
(iv) maintain the highest standards of customer support and
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fulfillment (including any set forth in a separate agreement between the parties
or on Schedule C); and (v) ensure all Advertising Materials, advertisers,
co-sponsors, affiliates and other third parties publicly affiliated with the VV
Permitted Businesses shall be consistent with NBC's reputation as a first-class
media and entertainment company. NBC acknowledges that the current operation of
the VV Cable Shopping Service and the VV Online Shopping Service as of the date
hereof satisfies all of VV's obligations under this Section 5.3.
5.4 Prohibited Services. Without limiting the generality of Section 5.3, VV
shall not Advertise, Exhibit or sell any: (i) products or services that are
prohibited by, do not comply or are inconsistent with the Standards and
Practices (which are included in Schedule E) or any other NBC guidelines or
policies as described in Section 5.2(d); (ii) weapons or ammunition of any kind,
including handguns; (iii) pornography, obscenity, sexually explicit or sexually
themed materials; (iv) materials offensive to reasonable persons due to concerns
based upon race, creed, gender, sexual orientation, ethnicity, religion or
national origin; (v) hard liquor; (vi) cigarettes and other tobacco products and
paraphernalia associated with the use of illegal drugs; (vii) goods or services
associated with gambling or lotteries; provided, however, that VV may Exhibit or
sell vacations to legal gaming sites, such as Las Vegas, and engage in similar
promotional activities, including, but not limited to, promotional sweepstakes
consistent with VV's past business practices, consistent with the policies and
guidelines set forth in Section 5.2 and Schedule D; and/or (viii) other goods or
services which would not be accepted for advertising on the NBC Television
Network according to the then-current guidelines and policies.
5.5 Trademark Standards. VV agrees to use the New Marks in good faith and
in a manner that (i) complies with the Standards and Practices and any other NBC
guidelines or policies as described in Section 5.2(d) issued from time to time
in its reasonable discretion; (ii) is consistent with NBC's reputation as a
first-class media and entertainment company; (iii) is consistent with good
trademark practice in the applicable country or jurisdiction.
5.6 Notice. VV agrees to include on all Exhibitions of the New Marks all
notices and legends required by applicable Laws to preserve their validity and
NBC's rights therein, including those notices and legends requested by NBC.
5.7 Internet Business. From the date hereof until the earlier of (a) the
expiration of this Agreement, or (b) the termination or expiration of all
restrictions on NBC and its subsidiaries existing as of the date hereof with
respect to the operation of any Internet Business, VV shall not, either directly
or indirectly, own, operate, acquire or expand its business such that its
Primary Business is to operate an Internet Business. For purposes of this
Section 5.7, (i) the "Primary Business" of a Person means a business that (a)
generates at least one third of that Person's revenues and more revenues than
any subsidiary, other business, division or operation of such Person or (b)
accounts for at least one third of that Person's value and more value than any
other subsidiary, business, division or operation of such Person; and (ii)
"Internet Business" means (a) an information, navigation and content aggregation
service distributed, all or substantially all, through the Internet that
provides, across more than six topics of general interest that do not relate to
each other or to a common topic, a combination of all or substantially all of
the following: Internet searching, content aggregation, topical interest
categories and web directories, (b) a broad-based community service distributed,
all or substantially all, through the
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Internet that offers its members homepages, e-mail and chat rooms and may offer,
in some cases, message boards, clip art, software libraries and/or online
greeting cards; or (c) a service of direct marketing a broad range of third
party products and services through Internet e-mail to registered members of
such service.
SECTION 6 - ADVERTISING
6.1 Right to Review. VV shall notify NBC in advance of the proposed
Exhibition of any new (i) series or groups of Advertisements to consumers or the
trade; (ii) media or press kits; or (iii) sales presentations or templates
therefor, in any form or media and shall have prepared to submit to NBC fair and
reasonable representative samples of all materials and content in any form or
media to be used in connection with any such Advertising (e.g., trade gifts,
Internet site content, scripts, story boards, promotional items, sales sheets,
binders and press kits) ("Advertising Materials"). NBC has the right, but not
the obligation, to review in advance any proposed Advertising relating to the VV
Permitted Businesses.
6.2. Approval. NBC shall notify VV within ten (10) days of its receipt of
written notice from VV in accordance with Section 6.1 if NBC wishes to review
any such Advertising Materials. NBC shall be deemed to approve automatically any
of the foregoing that it declines to review hereunder. NBC shall approve or
disapprove any submitted Advertising Materials, or notify VV that it needs
additional time to consider the request, within ten (10) days of its receipt
thereof, or such submissions shall be deemed approved automatically; provided,
however, that such Advertising Materials comply with all terms and conditions
hereof, including those in Section 5 herein. Notwithstanding the foregoing, if
VV requests expedited review of such submitted Advertising Materials due to
extraordinary circumstances, NBC shall use all commercially reasonable efforts
to approve or disapprove of any such submitted Advertising Materials within the
next 24 hours of the standard business week (i.e., Monday-Friday, 9 a.m.-5 p.m.
local time). Advertising Materials approved (or deemed to be approved) by NBC
pursuant to this Section 6.1 shall be deemed "Licensed Advertising" hereunder
and need not be resubmitted for approval, unless they are materially changed
and/or NBC later revokes such approval for any reason. Any such revocation shall
not be retroactive and shall be effective upon ten (10) days written notice to
VV. VV shall not exhibit any Advertising Materials with respect to the VV
Permitted Businesses that are not Licensed Advertising. It is agreed and
understood that NBC's approval of Advertising Materials, so long as the
Advertising Materials are in full compliance with the standards and provisions
set forth in Section 5 hereof and the use of the New Xxxx(s) in such Advertising
Materials is in full compliance with Section 2.3(b) hereof, shall not be
unreasonably withheld (and in particular shall not be unreasonably withheld on
the basis of creative differences between NBC and VV).
6.3 Samples. Upon NBC's reasonable request, VV, at its sole cost and
expense, shall deliver to NBC within five (5) business days (or sooner, if
justified under the circumstances) reasonable samples of applicable Licensed
Advertising as Exhibited to the public.
6.4 NBC's Obligations. NBC shall use commercially reasonable efforts to
support VV's overall advertising and marketing plans, in terms of providing
general advice to VV from time to time. VV shall reimburse NBC's reasonable
out-of-pocket expenses in this regard. NBC
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and VV shall explore in good faith other opportunities to integrate and
cross-promote their respective programming. To the extent VV requests further
advertising assistance from NBC beyond the above general advice, the parties
shall use commercially reasonable efforts to negotiate a separate agreement,
pursuant to which NBC shall provide such assistance to VV for additional
consideration. If such negotiations fail to result in an executed agreement, NBC
shall have no further obligations to VV with respect to advertising assistance
for the VV Permitted Businesses, except as provided herein.
SECTION 7 - OWNERSHIP
7.1 Ownership. VV agrees that NBC is the sole and exclusive owner of all
right, title and interest in the NBC Xxxx and the New Marks. VV agrees not to
directly or indirectly question, attack, contest or in any other manner impugn
the validity of the NBC Xxxx or New Marks or NBC's rights therein, including
without limitation thereto, in any action in which enforcement of a provision
hereof is sought, nor shall VV willingly become a party adverse to NBC in any
claim, action, suit, arbitration, litigation or other proceeding ("Action") in
which a third party contests the validity of the NBC Xxxx or the New Marks or
NBC's rights therein.
7.2 No Adoption. VV shall at no time adopt, use, reserve, register or
attempt to register (or allow others to do same) any NBC Xxxx or New Xxxx or any
trademark, service xxxx, domain name, logo or other indicator of origin
confusingly similar thereto, except as expressly authorized herein with respect
to the New Marks. VV agrees to abandon promptly its federal trademark
application for "SnapTV" and "SnapShopTV," and upon the request of NBC, abandon
or transfer to NBC any future applications or domain name reservations that
violate the preceding sentence. If VV requests to coin or create a new
trademark, service xxxx, domain name, logo or other indicator of origin that is
the same or confusingly similar to a New Xxxx, NBC Xxxx or any other trademark
or service xxxx owned by NBC, VV shall provide written notice to NBC thereof.
NBC may withhold consent to VV's request at its sole discretion. If NBC consents
to such request, such new trademark, service xxxx, domain name, logo or other
indicator of origin shall be owned by NBC and included in definition of New
Marks hereunder.
7.3 Goodwill. VV and NBC intend that any and all goodwill arising from VV's
use of the New Marks hereunder shall inure solely to the benefit of NBC as
rightful owner, and neither during nor after the expiration or termination
hereof shall VV assert any claim to the New Marks or the related goodwill. VV
shall not take any action that could be detrimental to the value, validity, or
NBC's rights in the NBC Xxxx or New Marks or related goodwill.
SECTION 8 - TRADEMARK PROTECTION
8.1 Maintenance. NBC shall have the sole right, but not the obligation, to
apply to register, prosecute, maintain and renew any New Xxxx (whether as a
trademark registration, domain name, or otherwise) anywhere in the Territory. At
NBC's request, VV shall cooperate fully with NBC to assist NBC in such
activities, including signing documents and maintaining evidence of its use of
the New Marks. VV may notify NBC of any request that NBC apply for a new
registration for a New Xxxx (whether a trademark, domain name, or otherwise)
anywhere in the Territory. Within 20 days of receipt of such notice, subject to
Section 8.2, NBC shall decide
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either to apply for such registration or to designate VV to file and prosecute
such application, to be approved in final form before submission by NBC, in
NBC's name at VV's expense. In the latter case, NBC shall cooperate as required
by applicable Law to allow VV to file and prosecute such application. All
registrations (whether a trademark, domain name, or otherwise) shall be owned by
NBC and licensed to VV as New Marks hereunder.
8.2 Refusals. Notwithstanding Section 8.1, NBC may refuse to apply to
register, prosecute, maintain and renew any New Xxxx (whether as a trademark
registration, domain name, or otherwise) in any country or jurisdiction, if NBC
reasonably believes that (i) the registration cannot be obtained there; (ii) a
third party may claim that VV's proposed registration infringes or violates its
rights; and/or (iii) such registration may conflict with any prior agreement to
which NBC or an Affiliate is a party.
8.3 Infringement. VV agrees to notify NBC immediately after it becomes
aware of any actual or threatened infringement, dilution or other violation or
impairment of the New Marks. NBC shall decide whether to assert or file an
Action against such activities at its sole discretion. If such activities have
occurred in the Territory, at NBC's sole option, NBC may prosecute the Action or
may notify VV that VV may prosecute the Action in its own name. If VV then
chooses to prosecute the Action, VV shall pay all expenses and fees (including
attorneys' fees and expenses and costs of investigation and litigation) incurred
in connection therewith, and shall retain any judgments, proceeds, damages or
settlements resulting therefrom. VV may not compromise or settle any such Action
without NBC's consent, which may be withheld in its sole discretion. Each of NBC
and VV agrees to cooperate with each other as necessary, in any such Action, at
the expense of the party prosecuting such Action.
SECTION 9 - TERM
9.1 Term. The term of this Agreement (the "Term") commences on the date
hereof and continues until November 16, 2010; unless termination occurs pursuant
to Sections 9.2 or 9.3. No later than eighteen (18) months prior to the
expiration hereof, the parties shall begin commercially reasonable, good faith
efforts to negotiate a renewal hereof, such renewal to provide additional
consideration to NBC. If such negotiations fail to result in an executed
agreement, the parties shall have no further obligations to each other with
respect to renewing the Term; provided, however, that NBC shall not use or
license the New Marks in use by VV at such time in connection with any of the
Licensed Services for a period of nine (9) months after expiration of the Term.
9.2 Prompt Termination. (a) NBC has the right to terminate this Agreement,
effective immediately upon written notice to VV, at any time after the
occurrence of any of the following:
(i) VV commits a material breach of or default under its obligations
herein, including without limitation any breach of or default under Sections 5
or 6.2, and fails to cure such breach or default within thirty (30) days after
receiving written notice of such breach or default from NBC; provided, however,
that VV shall not be entitled to a cure period if such breach is not reasonably
subject to cure.
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(ii) Control of VV is acquired by a Person that is or becomes an NBC
Competitor (including, without limitation, pursuant to Section 1.5 (b)).
(iii) (A) VV makes an assignment for the benefit of creditors; (B) VV
admits in writing its inability to pay debts as they mature; (C) a trustee or
receiver (or local equivalent) is appointed for a substantial part of VV's
assets; (D) to the extent termination is enforceable under applicable bankruptcy
(or local equivalent) laws, a proceeding in bankruptcy (or local equivalent) is
instituted against VV which is acquiesced in, is not dismissed within 120 days,
or results in an adjudication of bankruptcy (or local equivalent); (E) any
material assets, rights or shares of VV are nationalized, impounded, seized or
sequestered; provided, however, that the termination right pursuant to this
clause (E) shall apply only to such jurisdiction(s) in which material assets,
rights or shares of VV are nationalized, impounded, seized or sequestered, and
shall not affect the License in any other jurisdiction.
(iv) NBC reasonably determines that a VV Permitted Business is operating in
material violation, or in a manner that is reasonably likely to constitute a
material violation, of (A) a Law and/or (B) third-party rights in one or more
countries or jurisdictions; provided, however, that the termination right
pursuant to this clause (iv) shall apply only to the relevant jurisdiction(s)
and, with respect to any third-party rights, those specific New Marks in the
relevant jurisdiction(s); and shall not affect the License in any other
jurisdiction.
(v) VV engages in any illegal conduct that materially affects any VV
Permitted Business then being conducted and/or VV violates the Standards and
Practices, and VV fails to cure such conduct or such violation within thirty
(30) days after receiving written notice from NBC; provided that NBC may
terminate this Agreement immediately upon written notice if any such conduct or
violation reasonably justifies termination under the circumstances.
(vi) The parties using all good-faith efforts have not agreed on the New
Marks within ninety (90) days after the date hereof.
(b) VV has the right to terminate this Agreement, effective immediately
upon written notice to NBC, at any time after the occurrence of any of the
following:
(i) NBC commits a material breach of or default under its obligations
herein, such that VV could reasonably claim that rescission of the License had
occurred, and fails to cure such breach or default within thirty (30) days after
receiving written notice of such breach or default from VV; provided, however,
that NBC shall not be entitled to a cure period if such breach is not reasonably
subject to cure.
(ii) (A) NBC makes an assignment for the benefit of creditors; (B) NBC
admits in writing its inability to pay debts as they mature; (C) a trustee or
receiver (or local equivalent) is appointed for a substantial part of NBC's
assets; (D) to the extent termination is enforceable under applicable bankruptcy
(or local equivalent) laws, a proceeding in bankruptcy is instituted against NBC
which is acquiesced in, is not dismissed within 120 days, or results in an
adjudication of bankruptcy; (E) any material assets, rights or shares of NBC are
nationalized, impounded, seized or sequestered;
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(iii) The parties using all good-faith efforts have not agreed on the New
Marks within ninety (90) days after the date hereof.
(iv) The expiration of the thirty (30) day period after written notice by
VV to NBC that VV has determined to relinquish voluntarily all of its rights
under this Agreement.
9.3 Six Months' Termination. NBC has the right to terminate this Agreement,
effective upon one hundred eighty (180) days written notice to VV, at any time
after the occurrence of any of the following events and VV fails to cure such
event within 30 days after receiving written notice of the occurrence of such
event from NBC:
(a) Control of VV is acquired by, or VV or its Affiliates or senior
officers make a prominent public affiliation or sponsorship with, a (i) Person
who engages in a transaction that is not approved by VV's board of directors;
(ii) by a Person materially engaged in a business which is (a) weapons or
ammunition, (b) pornography, obscenity, sexually explicit or sexually themed
materials, (c) offensive to a reasonable person based on issues of race, creed,
gender, sexual orientation, ethnicity, religion or national origin, (d) hard
liquor, (e) cigarettes and other tobacco products, (f) paraphernalia associated
with the use of illegal drugs, and (g) goods or services associated with
gambling, or (iii) a Person who has a criminal or similarly unsavory background,
provided that NBC may announce such future termination immediately after such
decision is reached.
(b) NBC or GECEI ceases to have a representative on VV's board of directors
for any reason other than (i) NBC's failure to own beneficially sufficient
common shares as set forth in the Shareholder Agreement, dated as of April 15,
1999 between the Company, NBC and GECEI, or (ii) by NBC's together with its
Affiliates', decision to relinquish such board seat(s) either voluntarily or as
otherwise required by law.
(c) NBC fails to own, directly or indirectly, fifteen percent (15%), on a
fully-diluted basis of the outstanding shares of VV's capital stock; provided,
however, that if, prior to the date of such calculation, NBC (or any Affiliate
of NBC to whom NBC has transferred VV Transferred Shares) actively disposes of
more share of VV's capital stock, together with any other securities convertible
into shares of VV's capital stock (or in the case of an NBC Affiliate, only NBC
Transferred Shares) than it subsequently acquires, such threshold shall be
reduced pro rata to reflect such net disposition in the same proportion that the
number of shares of VV capital stock so transferred, together with any
securities convertible into shares of VV's capital stock (or in the case of an
NBC Affiliate, only NBC Transferred Shares) so transferred bears to the total
number of shares of VV capital stock owned by NBC directly or indirectly on a
fully-diluted basis immediately prior to such transfer.
9.4 Post-Termination. Upon expiration or termination hereof, (i) VV and NBC
shall cooperate so as best to preserve the value of the NBC Marks; and (ii) VV
shall immediately discontinue all use of the NBC Marks, and at NBC's request,
destroy or return all physical materials (including Advertising Materials)
bearing same and delete all intangible (e.g.,
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electronic) copies of same. Upon the decision to terminate this Agreement, NBC
shall have the immediate right to announce the termination of this Agreement.
SECTION 10 - REPRESENTATIONS/WARRANTIES
10.1 By Each Party. Each party represents and warrants to the other party
that (i) it has taken all corporate actions necessary to authorize its execution
and delivery of this Agreement and performance of the transactions or
obligations contemplated hereby; (ii) this Agreement has been duly executed and
delivered by each party and constitutes the legal, valid and binding obligation
of such, enforceable against such in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally or by general principles of equity; and
(iii) it has entered and will enter into no agreements with third parties that
conflict with its obligations hereunder.
10.2 By NBC. NBC represents and warrants to VV that (x) NBC is the owner of
all right, title and interest in and to the New Marks in the United States, and
(y) the New Marks do not infringe any trademark, service xxxx, trade name or
other similar intellectual property right of any other Person in the United
States.
10.3 By VV. VV represents and warrants to NBC that:
(a) as of the date of this Agreement VV has no understanding, arrangement
or agreement with Yahoo regarding the distribution, promotion and streaming of
the Licensed Services other than the commercial relationship and arrangement
between Yahoo and VV to be announced on November 20, 2000 (the "VV-Yahoo
Distribution Deal") regarding the inclusion of the Licensed Services within
Yahoo and affiliated-branded properties (the "Yahoo Shopping Site"); and
(b) the VV-Yahoo Distribution Deal: (i) provides Yahoo with the right to
distribute and promote solely the content of the Licensed Services (which may
contain the NBC Marks after the completion of the integration of the NBC brands
is complete) only on the Yahoo Shopping Site, and (ii) does not grant to Yahoo
any use of the NBC Marks, other than in connection with the distribution,
promotion (excluding co-branding) and streaming of the content of the Licensed
Services as set forth in the preceding (i); provided, however, that solely as
and to the extent represented herein, NBC hereby approves of the use by VV of
the New Marks in connection with the VV-Yahoo Distribution Deal; provided,
further, that VV shall obtain NBC's prior written consent to renew the VV-Yahoo
Distribution Deal, in whole or in part, and NBC shall not unreasonably withhold
such consent.
SECTION 11 - INDEMNITY
11.1 By NBC. NBC hereby indemnifies, defends, and holds harmless VV and its
Affiliates, successors and assigns and their respective directors, officers,
employees, representatives and agents of each ("Related Parties") from and
against any claims, actions, suits, assessments, losses, damages, awards,
settlements, interest, penalties, judgments, liabilities, costs, expenses
(including reasonable attorneys' fees and costs of litigation) (collectively,
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"Losses") asserted against, resulting to, imposed upon, or incurred by any of
them, solely to the extent such Losses arise out of: (i) the operation of NBC's
business; (ii) any breach by NBC of a representation, warranty, covenant or
agreement herein; and (iii) VV's use of the New Marks in the United States as
expressly authorized hereunder.
11.2 By VV. VV hereby indemnifies, defends, and holds harmless NBC and its
Related Parties from and against any Losses asserted against, resulting to,
imposed upon, or incurred by any of them, solely to the extent such Losses arise
out of: (i) the operation of VV's business and the sale of any products by or
via VV (including any personal injury or other claims relating to such
products); (ii) any breach by VV of a representation, warranty, covenant or
agreement herein; and (iii) VV's use of the New Marks and the NBC Marks other
than as expressly authorized hereunder.
11.3 Notice of Claim. The party seeking indemnification hereunder (the
"Claimant") shall promptly deliver to the other party (the "Obligor") notice in
writing of any potential indemnified claim ("Claim"); provided, however, that
the failure to provide such notice shall not limit Claimant's right to
indemnification hereunder except to the extent that Obligor is materially
prejudiced thereby. Obligor shall promptly notify Claimant of its acknowledgment
of its obligation of indemnity and its assumption of the defense of such Claim
and any litigation resulting therefrom (and any prosecution by way of
counterclaim or third party complaint arising out of or relating to such Claim)
or of any dispute regarding such obligation. Obligor and Claimant shall
cooperate fully in the defense of any Claim.
11.4 Defense. (a) After Obligor notifies Claimant of its assumption of
defense of a Claim, Obligor shall not be liable for any costs or expenses
subsequently incurred by Claimant in connection with the Claim without Obligor's
prior written consent; provided, however, that Obligor shall be responsible for
all such reasonable costs and expenses prior to such notification.
(b) Obligor may defend a Claim with reasonable counsel of its own choosing;
provided, that Claimant may participate in its own defense, with reasonable
counsel of its own choosing, at its own expense; and provided further, that
Claimant may participate in its own defense, with reasonable counsel of its own
choosing, at Obligor's expense if Claimant can reasonably establish that
Obligor's defense is reasonably likely to prejudice Claimant due to the nature
of any claims or counterclaims presented or conflict of interest issues.
(c) If Obligor, after receiving due notice of a Claim, fails to assume its
defense within a reasonable time so as reasonably to avoid prejudicing the
rights of Claimant, then until Obligor makes such assumption, Claimant may
participate in its own defense, with reasonable counsel of its own choosing,
without Obligor's consent. Such defense shall be at Obligor's cost if Obligor
subsequently assumes such defense, or if it is subsequently determined that
Obligor was obligated to do so.
(d) Obligor or Claimant may compromise or settle any Claim in its
reasonable discretion, except that neither party may compromise or settle any
Claim that compromises the other party's rights or imposes additional
obligations upon such party without such party's prior
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written consent. Obligor's consent is not required hereunder in cases where
Obligor has not acknowledged its obligation of indemnity for such Claim.
SECTION 12 - MISCELLANEOUS
12.1 Assignment. Neither party may assign or otherwise transfer this
Agreement without the prior written consent of the other party, except that (i)
NBC may transfer this Agreement to an Affiliate of NBC without consent, and (ii)
VV may assign this Agreement to any party that is a successor to VV by merger or
by way of an acquisition of substantially all of VV's assets or capital stock,
subject to NBC's rights under Section 9. Any purported assignment made in
contravention of this Section 12.1 shall be null and void ab initio and of no
force or effect. In the event of a permitted assignment, this Agreement shall be
binding upon, shall inure to the benefit of and shall be enforceable by the
respective successors and assigns of the parties hereto.
12.2 Amendment. Only a written instrument duly executed by both parties
hereto may amend this Agreement.
12.3 Waiver. Any failure of a party to comply with any obligation,
covenant, agreement or condition herein may be waived by the party entitled to
the benefits thereof by a written instrument signed by waiving party. Such
waiver shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure.
12.4 Notices. All notices and other communications provided for hereunder
shall be in writing and delivered by hand or sent by first class mail or
overnight carrier or sent by facsimile (with such facsimile to be confirmed
promptly in writing sent by first class mail or overnight carrier) as follows:
If to NBC, addressed to:
National Broadcasting Company, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Trademark Counsel
Fax: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxx
Fax: (000) 000-0000
If to VV, addressed to:
ValueVision International, Inc.
0000 Xxxxx Xxx Xxxx
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Eden Prairie, Minnesota 55344-3433
Attention: General Counsel
Fax: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Fax: (000) 000-0000
and
Faegre & Xxxxxx LLP
2200 Norwest Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
or to such other address or addresses or facsimile number or numbers as any of
the parties hereto may most recently have designated in writing to the other
parties hereto by such notice. All such communications shall be deemed to have
been given or made when so delivered by hand or sent by facsimile or one
business day after being sent by an overnight carrier or three business days
after being sent by first class mail.
12.5 Entire Agreement. This Agreement (including the Schedules referred to
herein) contains the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior oral and written agreements
and understandings between the parties hereto with regard to such subject
matter.
12.6 Confidentiality. (a) In connection with the activities contemplated by
this Agreement, each party may have access to non-public, confidential or
proprietary information of the other party, including (i) proposals, ideas or
research related to possible new products or services; (ii) financial, business
and technical statements and other information; (iii) any information marked as
confidential; and (vi) the material terms of this Agreement and the relationship
between the parties (collectively, "Confidential Information").
(b) Each party will take reasonable precautions to protect the
confidentiality of the other party's Confidential Information at least
equivalent to those taken by such party to protect its own Confidential
Information. Except as required by law or as necessary to perform under this
Agreement, neither party will disclose the Confidential Information of the other
party or use such Confidential Information for its any unauthorized purpose.
(c) "Confidential Information" shall not include any information that the
receiving party ("Recipient") can document (i) was in the public domain before
or at the time it was
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communicated to the Recipient by the disclosing party ("Discloser") through no
fault of Recipient; (ii) was rightfully in Recipient's possession free of any
obligation of confidence before or at the time it was communicated to Recipient
by Discloser; (iii) is or was developed or acquired by Recipient independently
of and without reference to any Confidential Information disclosed by Discloser;
(iv) was communicated by Discloser to an unaffiliated third party free of any
obligation of confidence; or (v) was in response to a valid order by a court or
other governmental body, was otherwise required by Law (including regulations of
the Securities and Exchange Commission) or was necessary to establish the rights
of either party under this Agreement; provided that the Recipient informs
Discloser of its need to disclose under this subsection (v) as promptly as
possible and either cooperates with all efforts by Discloser to obtain a
protective order or confidential treatment, as the case may be, or at the sole
option of the Discloser, uses its own best efforts to obtain a protective order,
or confidential treatment, as the case may be.
12.7 Cumulative Remedies. The rights and remedies provided by this
Agreement are cumulative, and the use of any one right or remedy by any party
shall not preclude or waive its right to seek any or all other remedies. Said
rights and remedies are given in addition to any other rights the parties may
have by Law.
12.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, applicable to contracts
executed and to be performed entirely in such state.
(b) Each party irrevocably and unconditionally submits, to the exclusive
jurisdiction of any state or federal court sitting in the County of New York,
New York, in any Action arising out of or relating to this Agreement and for
recognition or enforcement of any judgment relating thereto. Each party
irrevocably and unconditionally (i) waives any objection which it may now or
hereafter have to the laying of venue in such jurisdiction of any such Action
and (ii) accepts, with regard to any such Action, the personal jurisdiction of
such New York courts and waives any defense or objection that it might otherwise
have to such courts' exercise of personal jurisdiction with respect to it. Any
and all service of process shall be effective against any party if given by
registered or certified mail, return receipt requested, or by any other means of
mail which requires a signed receipt, postage prepaid.
(c) The parties hereto agree that NBC shall suffer irreparable harm in the
event of a breach or default by VV relating to the NBC Marks, and that
notwithstanding Section 12.9(b), NBC has the right, in addition to all other
remedies at law or in equity, to seek an injunction to enjoin any such breach in
any court of competent jurisdiction.
12.9 Service of Process; Dispute Resolution. (a) Each of the parties hereto
irrevocably consents to the service of process, pleading, notices or other
papers by the mailing of copies thereof by registered, certified or first class
mail, postage prepaid, to such party at such party's address set forth herein,
or by any other method provided or permitted under New York law.
(b) Any and all disputes, controversies or differences arising from or in
connection with this Agreement shall be settled by mutual consultation between
the parties hereto in good faith as promptly as possible, but failing an
amicable settlement shall be resolved by arbitration before a panel of three
arbitrators (unless a single arbitrator can be agreed upon by the parties) in
the
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County of New York, New York, in accordance with the Commercial Dispute
Resolution Procedures (as amended and effective on January 1, 1999) of the
American Arbitration Association ("AAA"). The parties expressly adopt AAA's
Optional Rules for Emergency Measures Protection. The panel shall render a final
opinion and award in writing stating the reasons therefore, and the award shall
be final and binding upon the parties hereto. In the event such final opinion
and award was issued in connection with a material breach of or default as
provided for in Section 9.2(a)(i) or (b)(i), the party held to have been in
material breach or default shall be able to cure such breach or default within
thirty (30) days after receipt of such final opinion and award prior to entry of
judgment thereon. Thereafter judgment upon the award may be entered in any court
of applicable jurisdiction. Any proceeding to obtain a judgment upon the award
shall be brought in the federal courts of the United States of America in the
City and County of New York, New York or in any court of general jurisdiction in
the County of New York. Each party irrevocably consents to the jurisdiction and
venue of any such court in any such suit, action or proceeding, and waives any
objection which such party may have to the laying of venue of any such suit,
action or proceeding in any such court.
(c) The parties hereto agree that NBC shall suffer irreparable harm in the
event of a breach or default by VV relating to the New Marks, and that
notwithstanding Section 12.9(b), NBC has the right, in addition to all other
remedies at law or in equity, to seek an injunction to enjoin any such breach in
any court of competent jurisdiction.
12.10 Severability. In the event that any of the provisions of this
Agreement are held to be unenforceable or invalid by any court of competent
jurisdiction, the validity and enforceability of the remaining provisions will
not be affected thereby.
12.11 Construction. The Section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. This Agreement shall be construed
as if it was drafted jointly by the parties. Unless otherwise expressly provided
herein or unless the context shall otherwise require, any provision hereof using
an undefined term relating to television programming shall have the meaning
customarily ascribed thereto in the television industry in the applicable
territory. The words "include(s)" and "including" shall be deemed to be followed
by "without limitation." All references to "party(ies)" shall be deemed
references to the parties hereto unless the context shall otherwise require.
12.12 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
VALUEVISION INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President,
General Counsel and Secretary
NATIONAL BROADCASTING COMPANY, INC.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
