EXHIBIT 10.21
BROADBAND SPORTS, INC.
ADVERTISING AGREEMENT
This Advertising Agreement (this "Agreement") is made and entered into as
of April 12, 2000 (the "Effective Date"), by and between DIRECTV, Inc., a
California corporation ("DIRECTV") and Broadband Sports, Inc., a Delaware
corporation ("BBS"). DTV and BBS shall each constitute a "Party" under this
Agreement and shall collectively constitute the "Parties" under this Agreement.
RECITALS
WHEREAS, DIRECTV has established a direct broadcast satellite ("DBS")
service-based multi-channel distribution system in the USA currently known as
"DIRECTV";
WHEREAS, an important component of DIRECTV's programming format for the DTV
System is sports programming and packages of sports programming;
WHEREAS, BBS is a leading provider of content to sports enthusiasts and
operates, programs or controls a number of on-line websites and other on-line
destinations devoted to sports;
WHEREAS, BBS and DIRECTV desire to enter into this Agreement to set forth
the terms upon which the Parties may engage in advertising/promotional
opportunities;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, BBS and DIRECTV agree as set forth
herein:
1. DEFINITIONS:
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The following terms and variations thereof, as used herein, shall have the
meanings listed below. Terms not defined in this Section shall have the
meanings ascribed to them elsewhere in the Agreement.
"Affiliated Company": With respect to any Person, another Person
controlled by, under common control with or controlling (i.e., the power to
direct affairs by reason of ownership of voting stock, by contract or
otherwise) such Person.
"BBS Advertising": Advertising Impressions on the BBS Properties.
"BBS Properties": Internet web sites on the World Wide Web that are owned,
managed, maintained or otherwise controlled by BBS or its agents from time
to time. As of the Effective Date, the BBS Properties includes
AthletesDirect, College Sports Xchange, Pro Sports Xchange, RotoNewsDirect,
SportsAuthenticsDirect and SportsWritersDirect.
"Competing Multi-Channel System": Any multi-channel television
distribution system, including without limitation any multi-channel cable
or satellite-delivered television distribution system, operated wholly or
predominantly in the USA, other than the DTV System. By way of example
(but not limitation), a Competing Multi-Channel System would include, for
example, the Dish Network and Time Warner Cable, but would not include, for
example,
"DTV Programming Services": Any programming service, whether owned or
operated by DTV or by a third Person, distributed over the DTV System to
DTV Subscribers.
"DTV System": The DBS service owned and operated by DIRECTV and/or its
Affiliates currently known as "DIRECTV" which utilizes DBS communications
satellites located at 101 degrees X.X. to provide programming to
subscribers in the United States (and any successor service).
"DTV Subscribers": Those customers (both residential and non-residential
customers) authorized by DTV to receive the DTV System.
"Impression": An on-line user's exposure to an advertisement, including,
without limitation, to the applicable advertiser's trademark or logo; or
any teaser, icon, or link to an Internet site of or designated by such
advertiser.
"Internet Sports Provider": An on-line service, web-site or Internet
destination that features, as its predominant category of content, any or
any combination of the following: sports-related news, sports information,
sports programming, sales of sports-related memorabilia and/or sales of
licensed professional/collegiate team wear, apparel or products.
"Laws": Any FCC and any other governmental (whether international, federal,
state, municipal or otherwise) statute, law, rule, regulation, ordinance,
code, directive and order, including, without limitation, any court order.
"Person": Any natural person, corporation, division of a corporation,
partnership, trust, joint venture, limited liability company, association,
company, estate, unincorporated organization or government or any agency or
political subdivision thereof.
"Professional League Packages" Those "season packages" of live professional
sports league programming made available by DIRECTV to its DTV Subscribers.
The Professional League Packages currently made available by DTV are the
"MLB Extra Innings" package (comprised of Major League Baseball games) (the
"MLB Package"), "NFL Sunday Ticket" package (comprised of National Football
League games) (the "NFL Package"), the "NBA League Pass" package (comprised
of National Basketball Association games) (the "NBA Package") and the "NHL:
Center Ice" package (comprised of National Hockey League games) (the "NHL
Package").
2. ADVERTISING PLACEMENT COMMITMENT:
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2.1 Aggregate Commitment: DIRECTV hereby agrees to purchase BBS
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Advertising in the amount of $7,625,000, in the aggregate, for
Impressions in the period commencing on the Effective Date and ending
June 30, 2002 (the "Initial Period").
2.2 Allocation of Advertising Commitment: BBS Advertising committed to by
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DIRECTV with respect to the Initial Period shall be allocated among
each calendar year during the Initial Period in accordance with the
following, unless DIRECTV and BBS otherwise agree:
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Within each of the aforesaid calendar years, DIRECTV's minimum
aggregate BBS Advertising commitment for such calendar year shall be allocated
among each applicable calendar quarter in accordance with the following, unless
DIRECTV and BBS otherwise agree:
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DIRECTV may (i) vary the dollar figures applicable to the quarterly periods
of calendar year 2000 by as much as 5% in a quarter, provided that the
total for 2000 equals at least , (ii) vary the dollar figures
applicable to the quarterly periods of calendar year 2001 by as much as 5%
in a quarter, provided that the total for 2001 equals at least
and (iii) vary the dollar figures applicable to the first two (2) quarterly
periods of calendar year 2002 by as much as 5% in a quarter, provided that
the total for the first two (2) quarters of 2002 equals at least
. Notwithstanding the foregoing provisions (including, without
limitation, the provisions of the immediately preceding sentence), DIRECTV
at all times reserve the right to accelerate any or all of its advertising
commitment within a given year and between years, and payments made in
excess of the minimum in connection with any such acceleration shall reduce
corresponding payment amounts required in future calendar periods.
2.3 Payments For BBS Advertising: Payment by DIRECTV for the BBS
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Advertising shall be made on a monthly basis, with payment for any
month made no later than forty-five (45) days after DIRECTV's receipt
of an invoice for such month
2.4 DIRECTV Option: DIRECTV shall have the option, exercisable upon
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written notice provided no later than November 1, 2001, to continue to
purchase the BBS Advertising for an additional twenty-four (24) month
period commencing upon the expiration of the Initial Period (the
"Extension Period") on the same terms as are applicable during the
Initial Period (including, without limitation, the category
exclusivity set forth in Section 2.8 below, which would then run
through the end of the Extension Period), with the exception that the
amount of purchase for the Extension Period would be no less than
$8,500,000 for BBS Advertising. BBS Advertising committed to by
DIRECTV with respect to the Extension Period shall be allocated among
each of the two (2) twelve month periods comprising the Extension
Period in accordance with the following, unless DIRECTV and BBS
otherwise agree:
BBS Advertising committed to by DIRECTV with respect to the Extension
Period shall be further allocated among each calendar quarter during the
Extension Period in accordance with the following, unless DIRECTV and BBS
otherwise agree:
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DIRECTV may (i) vary the dollar figures applicable to the quarterly periods
of the First Extension Year by as much as 5% in a quarter, provided that
the total for the First Extension Year equals at least and (ii)
vary the dollar figures applicable to the quarterly periods of the Second
Extension Year by as much as 5% in a quarter, provided that the total for
the Second Extension Year equals at least . Notwithstanding the
foregoing provisions (including, without limitation, the provisions of the
immediately preceding sentence), DIRECTV at all times reserve the right to
accelerate any or all of its advertising commitment within the First
Extension Year and within the Second Extension Year and between the First
Extension Year and the Second Extension Year, and payments made in excess
of the minimum in connection with any such acceleration shall reduce
corresponding payment amounts required in future calendar periods.
2.5 Rate Card: BBS Advertising shall be purchased by DIRECTV under this
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Agreement on an Impressions basis, using BBS' standard rate card (as
modified by BBS from time-to-time, the "Rate Card"; a copy of the
current Rate Card is attached hereto as Exhibit "A"); provided, that
all BBS Advertising purchased by DIRECTV under this Agreement shall be
sold at of the Rate Card rate. To the extent that
any "make goods" should become necessary due to shortfalls in
Impressions delivered, the additional Impressions shall be promptly
provided (i.e., provided in the next succeeding calendar quarter), at
no additional cost, in additional advertising placement on BBS
Properties, with such placement (across the various BBS Properties and
within any particular BBS Property) to be reasonably approved by
DIRECTV .
2.6 Placement and Scheduling of BBS Advertising: Within thirty (30) days
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after the Effective Date, the Parties shall mutually agree upon the
placement (across the various BBS Properties and within any particular
BBS Property) and scheduling of DIRECTV's advertising on the BBS
Properties for the first half of 2000. The Parties shall thereafter
meet and agree on the upcoming schedule and placement for subsequent
periods on a quarterly basis. All scheduling shall be consistent with
the requirements of Section 2.2 above.
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2.7 Use of Purchased BBS Advertising: DIRECTV may use the BBS Advertising
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purchased hereunder only as follows: (a) DIRECTV may use the BBS
Advertising for the placement of advertising regarding DIRECTV's
equipment, generic DIRECTV service offers that do not identify any
particular programming, DIRECTV's Professional League Packages or
DIRECTV programming packages/programming offers in connection with
customer acquisition and/or customer up-grade (it being agreed that
such offers may make reference to "Total Choice Sports" but shall not
otherwise emphasize, although they may incidentally refer to, any DTV
Programming Service that emphasizes sports); and (b) DIRECTV may use
up to of the BBS Advertising in any calendar quarter to promote
third party products and services unrelated to DIRECTV, subject,
however, to BBS' prior written consent, which shall not be
unreasonably withheld (the "Third Party Advertising"). BBS shall be
deemed to have pre-approved Third Party Advertising by the following
third Persons, subject to approval of the creative elements (to
assure compliance with BBS' standards and practices regarding Third
Party Advertising on the BBS Properties): DIRECTV system hardware
manufacturers, retailers of DIRECTV system hardware and DIRECTV
services and DIRECTV advanced product partners, such as WINK and
TiVo. DIRECTV shall be responsible for payment of all Third Party
Advertising.
2.8 Category Exclusivity: During the three (3) year period commencing
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August 1, 2000, DIRECTV shall be the exclusive multi-channel
that is advertised on the BBS
Properties and BBS shall not sell, during such period, advertising on
the BBS Properties to any or
supporting a (for
example,
2.9 Further Coordination: Within thirty (30) days after the Effective
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Date, the Parties shall meet to discuss and coordinate related
matters such as (a) technical specifications, (b) ad-insertion
mechanics and (c) BBS' standards and practices regarding advertising
content (with BBS agreeing to advise DIRECTV, from time-to-time, of
any changes to such standards and practices).
2.10 Periodic Statements: BBS has advised DIRECTV that BBS does not
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customarily send Impressions reports to third party advertisers on
the BBS Properties with respect to the BBS Advertising that such
third party advertisers have purchased. However, BBS agrees that it
will, on a quarterly basis and upon DIRECTV's request from time-to-
time, provide DIRECTV with redacted copies of the Impressions reports
that BBS receives from DART (Double-Click), to the extent necessary
to provide DIRECTV with confirmation regarding the number of
Impressions received by the BBS Advertising purchased by DIRECTV
under this Agreement.
3. CONFIDENTIALITY: Each Party understands that during the term of this
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Agreement it may have access to, or there may be disclosed to it
("Recipient"), certain information not generally known to the public
about the other party ("Discloser") or other parties with whom Discloser
is doing business (including, without limitation, information relating to
its technical, marketing, product and/or business affairs) (hereinafter
collectively referred to as
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"Confidential Information"). During and after the term of this Agreement,
Recipient will (a) take such precautions (but no less than reasonable
precautions) to protect the confidentiality of the Confidential
Information of Discloser as Recipient takes to protect its own similar
confidential information; and (b) not disclose any Confidential
Information of Discloser to any third party without the express
authorization of an officer of Discloser other than to (a) those of its
employees, agents and advisors who have a need to know such information
to enable Recipient to perform its obligations hereunder, who are advised
of the confidential and proprietary nature of such information, and who
are subject to a duty of loyalty and confidentiality to Recipient and (b)
a potential private investor in a Party or a potential purchaser of a
Party (or of all or substantially all of the assets of a Party) and its
representatives, all on a need to know basis and subject to such
potential investor/purchaser executing a confidentiality agreement
pursuant to which such potential investor/purchaser agrees, on behalf of
itself and its representatives, to comply with the confidentiality
provisions of this Section.
In the event Recipient is directed to disclose any Confidential
Information of Discloser by operation of law or in connection with a
judicial or governmental proceeding or inquiry, it will promptly notify
Discloser in writing and will assist Discloser in seeking a suitable
protective order or assurance of confidential treatment and in taking any
other steps deemed reasonably necessary by Discloser to preserve the
confidentiality of any such information; nevertheless, Recipient may
disclose only that portion of Discloser's Confidential Information as is
required to comply with any applicable judicial or governmental order and
will afford Discloser a reasonable opportunity to review and comment on
the text of any such disclosure before it is made by Recipient.
Recipient's obligations contained in this paragraph will not apply to any
information that: (i) is rightfully in the possession of Recipient from a
source other than Discloser prior to the time of disclosure of said
information to Recipient hereunder ("Time of Receipt"); (ii) is in the
public domain prior to the Time of Receipt; (iii) becomes part of the
public domain after the Time of Receipt by any means except an
unauthorized act or omission or breach of this Agreement on the part of
Recipient or any of its employees, agents or advisors; (iv) is supplied
to Recipient after the Time of Receipt without restriction by a third
party who is under no obligation to Discloser to maintain such
information in confidence; or (v) is developed by or for Recipient
independently of and without reference to any Confidential Information of
Discloser.
4. REPRESENTATIONS AND WARRANTIES: Each of the Parties (as applicable, the
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"Warranting Party") hereby represents and warrants to the other that: (i)
the Warranting Party has full authority to enter into this Agreement and
to perform its obligations hereunder without violating the rights of, or
any agreement involving, any other Person; and (ii) all obligations owed
or to be owed to third Persons by the Warranting Party with respect to
the activities contemplated to be undertaken by the Warranty Party
pursuant to this Agreement are or will be fully satisfied by the
Warranting Party, such that the other Party will not have any obligations
with respect thereto; and (iii) the Warranting Party is not contractually
or legally restricted from performing its obligations under this
Agreement. In addition, BBS hereby further represents and warrants that
the rate card provided to DIRECTV as BBS' Rate Card (from time-to-time,
as contemplated by Section 2.5 above) shall, in each instance, reflect
rates that are representative of the rates generally sought by BBS, and
received by BBS (within a twenty percent (20%) price variance) from the
majority of its customers, in connection with ordinary course ad sales
(other than (i) ad sales involving customers with whom BBS otherwise has
significant/strategic dealings, (ii) ad sales that are part of
introductory or special incentive programs and (iii) ad sales with a
committed value of more than $25,000).
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5. INDEMNIFICATION:
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5.1 Indemnification Obligations: Each Party (the "Indemnifying Party")
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shall indemnify, defend and hold harmless the other Party (the
"Indemnified Party") and the Indemnified Party's Affiliates, officers,
directors, employees, agents, successors and assigns (collectively with
the Indemnified Party, the "Indemnified Group") from, against and with
respect to any and all claims, damages, liabilities, costs and expenses
(including, without limitation, reasonable attorneys' fees and costs)
incurred in connection with any claim against the Indemnified Group
arising out of (a) the Indemnifying Party's breach of any of its
obligations, agreements or covenants under this Agreement, (b) a breach
of any representation or warranty made by the Indemnifying Party under
this Agreement, (c) any libel, slander, defamation, invasion of privacy
or violation or infringement of copyright, trademark or other third
party proprietary rights as a result of any services, materials or
advertising performed or provided by the Indemnifying Party pursuant to
or in furtherance of the activities contemplated under this Agreement,
or (d) any violation of Law committed by the Indemnified Party.
5.2 Defense of Third Party Claims: The Indemnified Party shall promptly
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notify the Indemnifying Party in writing of any third party claim or
litigation to which the indemnification provisions of Section 5.1
apply, and the Indemnifying Party shall assume the defense of any such
claim or litigation (provided, that the Indemnified Party shall have
the right to engage separate counsel of its choice and participate in
the defense, negotiation and settlement of such action or proceeding,
but shall bear the fees and expenses of such separate counsel retained
by the Indemnified Party and the Indemnified Party shall cooperate in
the defense of such claim at no cost or charge to the Indemnifying
Party, other than for performing such acts as the Indemnifying Party
shall request). If, for any reason, the Indemnifying Party shall fail
to appoint counsel on a timely basis, or otherwise fails to confirm its
assumption of the defense of any applicable claim, the Indemnified
Party may engage its own counsel and the reasonable costs and expenses
made in connection therewith shall be paid by the Indemnifying Party.
The Indemnified Party shall have the right to approve or disapprove the
settlement or disposition of any such claim or litigation proposed by
the Indemnifying Party, which right shall expire twenty (20) days
following the Indemnified Party's receipt of written notice thereof.
The Indemnifying Party shall not have the right to enter into any
settlement or compromise unless, in connection therewith, the
Indemnifying Party obtains from the claimants a full release of all
related claims against the Indemnified Group and does not otherwise
purport to adversely affect or curtail the Indemnified Group's
proprietary rights or interests.
6. DISCLAIMERS OF WARRANTY: THE WARRANTIES SET FORTH IN SECTION 4 ARE
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LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY THE RESPECTIVE
PARTIES. THE PARTIES EXPRESSLY DISCLAIM, AND HEREBY EXPRESSLY WAIVE, ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BBS
SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT
TO: (a) THE BBS PROPERTIES, INCLUDING, WITHOUT LIMITATION, THAT (i)
FUNCTIONALITY OF THE BBS PROPERTIES WILL BE UNINTERRUPTED OR ERROR-FREE,
(ii) THE BBS PROPERTIES WILL NOT CONTAIN VIRUSES OR OTHER HARMFUL
COMPONENTS, (iii) THE SECURITY METHODS EMPLOYED WITH RESPECT TO THE BBS
PROPERTIES WILL BE SUFFICIENT, AND (iv) ANY CONTENT ON THE
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BBS PROPERTIES IS CORRECT, ACCURATE OR RELIABLE; AND (b) ANY PRODUCT OR
SERVICE OFFERED OR SOLD THROUGH THE BBS PROPERTIES, INCLUDING WITHOUT
LIMITATION WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. LIMITATION OF LIABILITY: SUBJECT TO THE INDEMNIFICATION OBLIGATIONS OF
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THE PARTIES UNDER SECTION 4 WHICH APPLY IN THE EVENT OF ANY THIRD PARTY
CLAIM GIVING RISE TO SUCH INDEMNIFICATION OBLIGATIONS, NEITHER PARTY
SHALL BE LIABLE TO THE OTHER PARTY WITH RESPECT TO ITS OBLIGATIONS UNDER
THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL,
INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF THE PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. TERMINATION: This Agreement may be terminated by a Party, in its
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discretion, at any time after any of the following occurrences:
8.1 Termination by BBS: BBS may terminate this Agreement under the
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following circumstances:
(a) Breach of Material Obligation: DIRECTV fails to perform any
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material agreement, term or covenant under this Agreement, unless
(i) DIRECTV cures such failure within thirty (30) days after
receipt of such written notice thereof from BBS or (ii) DIRECTV
has diligently commenced reasonable steps to cure such failure
within such thirty (30) day period and thereafter diligently and
completely cures such failure within an additional thirty (30)
day period;
(b) Breach of Representation/Warranty: Any representation or warranty
---------------------------------
made by DIRECTV hereunder proves to be inaccurate in any material
respect, in which case BBS shall have the right to terminate this
Agreement upon thirty (30) days prior written notice to DIRECTV
of such inaccuracy.
(c) Insolvency: Upon the filing of a voluntary or involuntary
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petition in bankruptcy by or against DIRECTV or upon the
appointment of a receiver, trustee, liquidator or custodian for
all or a substantial part of DIRECTV's property, provided, that
in the case of an involuntary petition or appointment, BBS shall
not have the right to terminate if the applicable involuntary
action is vacated within thirty (30) days.
8.2 Termination by DIRECTV: DIRECTV may terminate this Agreement under the
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following circumstances:
(a) Breach of Material Obligation: BBS fails to perform any material
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agreement, term or covenant under this Agreement, unless (i) BBS
cures such failure within thirty (30) days after receipt of such
written notice thereof from DIRECTV or (ii) BBS has diligently
commenced reasonable steps to cure such failure within such
thirty (30) day period and thereafter diligently and completely
cures such failure within an additional thirty (30) day period;
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(b) Breach of Representation/Warranty: Any representation or warranty
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made by BBS hereunder proves to be inaccurate in any material
respect, in which case DIRECTV shall have the right to terminate
this Agreement upon thirty (30) days prior written notice to BBS
of such inaccuracy.
(c) Insolvency: Upon the filing of a voluntary or involuntary
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petition in bankruptcy by or against BBS or upon the appointment
of a receiver, trustee, liquidator or custodian for all or a
substantial part of BBS's property, provided, that in the case of
an involuntary petition or appointment, DIRECTV shall not have
the right to terminate if the applicable involuntary action is
vacated within thirty (30) days.
8.3 Remedies: The foregoing termination rights are in addition to a
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Party's other rights at law or in equity or pursuant to any other
provision of this Agreement.
9. MISCELLANEOUS:
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9.1 Invoices: The Parties agree that, in respect of any payment hereunder
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not otherwise specifically provided for as to date of payment, each
Party shall invoice the other Party for any amount due to it hereunder
and payment shall be due and payable no later than forty-five (45)
calendar days following receipt of such invoice. The failure by a
Party to provide a timely invoice to another Party shall not
constitute a waiver by it of its right to receive such amounts but the
corresponding payment shall not be deemed due and payable until the
expiration of the due date as determined in this Section.
9.2 Severability: If any term or other provision of this Agreement is
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invalid, illegal or incapable of being enforced by reason of any Law
or public policy, all other terms and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is
not affected in any manner materially adverse to either Party. Upon
such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the Parties shall negotiate in
good faith to modify this Agreement so as to effect the original
intent of the Parties as closely as possible in an acceptable manner
in order that the transactions contemplated hereby are consummated as
originally contemplated to the greatest extent possible.
9.3 No Waiver: The failure of either Party to partially or fully exercise
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any right or the waiver by either Party of any breach, shall not
prevent a subsequent exercise of such right or be deemed a waiver of
any subsequent breach of the same or any other term of this Agreement.
9.4 Assignment: Neither Party may assign any of its rights or obligations
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under this Agreement to any other Person without the other Party's
prior written consent; provided, that either Party may assign its
rights and obligations under this Agreement to an Affiliate, to a
third Person which acquires all or substantially all of such Party's
assets or to a third Person into which such Party may be merged or
consolidated, provided that the applicable assignee agrees to assume
all of the assigning Party's obligations hereunder and subject to the
further understanding that the assigning Party shall nevertheless
remain liable for its obligations hereunder (notwithstanding such
assignment) in the absence of a contrary written agreement with the
non-assigning Party.
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9.5 Survival: Upon expiration or termination of this Agreement, the
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provisions of Sections 3, 5, 6 and 7 above shall survive.
9.6 Governing Law/Jurisdiction: This Agreement and all matters collateral
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hereto shall be construed and enforced in accordance with the laws of
the State of California applicable to contracts executed and performed
entirely therein. Each of the Parties hereby irrevocably agrees that
the state and federal courts located in Los Angeles, California shall
have sole jurisdiction over any suit or other proceeding arising out
of or based upon this Agreement and each Party hereto hereby waives
any claim that it is not subject personally to the jurisdiction of
said courts of that any such suit or proceeding is brought in an
inconvenient forum or improper venue. Each of the Parties hereto
irrevocably agrees that service of process in any such suit or other
proceeding shall be properly made (without limitation) if delivered to
the address(es) set forth in Section 9.11 below.
9.7 Third Party Beneficiaries: No other Persons shall be deemed a third
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party beneficiary of this Agreement. Nothing in this Agreement,
express or implied, is intended to confer upon any other Person any
legal or equitable right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
9.8 Amendments: This Agreement may not be amended or modified except by an
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instrument in writing signed by both BBS and DIRECTV.
9.9 Force Majeure: Neither Party shall be liable to the other Party for
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any losses or damages incurred by such other Party for breach of any
representation, warranty or covenant made by it in this Agreement or
for failure or delay in providing any services or content described in
this Agreement where such breach, failure or delay is due to acts of
God, failure of carriers, labor disputes, war, public disaster,
failure or delay in software encoding, or any other cause beyond its
control.
9.10 Counterparts: This Agreement may be executed in one or more
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counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the
same agreement.
9.11 Notices: All notices hereunder shall be in writing and shall be sent
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by certified mail (return receipt requested) or registered mail, by
air courier service, by personal delivery or by facsimile confirmed by
mail (provided that notices of breaches under this Agreement may not
be made by facsimile) to the address (or fax number) of the Party for
whom it is intended, as follows:
BBS: Broadband Sports, Inc., 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx
Xxxxxx, Xxxxxxxxxx 00000, Fax No. 310\000-0000, Attn: Vice President,
Business Development, with a separate copy to the attention of Vice
President, General Counsel.
To DIRECTV: DIRECTV, 0000 X. Xxxxxxxx Xxx, Xx Xxxxxxx, Xxxxxxxxxx
00000, Fax No. 310\000-0000, Attn: Vice President of New Ventures,
with a separate copy to the attention of the General Counsel, Fax No.
310\726-4991.
All notices shall be deemed to have been given (a) on the fifth
business days after the date when sent by registered or certified
mail, if sent by mail, (b) on the first business day after the date of
delivery to an air courier service, if sent by air courier or (c) on
the date of receipt, if sent by personal delivery or facsimile.
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9.12 Captions: The headings of sections and subsections contained in this
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Agreement are intended for convenience only, and they shall not be of
any effect in construing the contents of the respective sections and
subsections.
9.13 Entire Agreement: This Agreement sets forth the entire agreement
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between the Parties on this subject and supersedes all prior
negotiations, understandings and agreements between the Parties
concerning the subject matter.
IN WITNESS WHEREOF, BBS and DIRECTV have each executed this Agreement
as of the Effective Date.
BROADBAND SPORTS, INC. DIRECTV, INC.
By: By:
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Name: Name:
Title: Title:
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EXHIBIT A
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BBS' CURRENT RATE CARD
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