EXHIBIT 10.23
REPLAY NETWORK SERVICE AGREEMENT
--------------------------------
This Replay Network Service Agreement (this "Agreement") is made as of the ___
day of March, 2000 between ReplayTV, Inc., a Delaware corporation having its
place of business at 0000 Xxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
("Replay Networks" or "Replay"), FOX Broadcasting Company ("FBC") a Delaware
corporation having its principal place of business at 00000 Xxxx Xxxx Xxxxxxxxx,
Xxx Xxxxxxx, XX 00000.
WHEREAS, the parties hereto desire to enter into this Agreement to more fully
describe their relationship and to provide for their respective rights and
obligations as it relates to programming exhibited on FOX Network(s) (as defined
below) and the Replay Network Service as more fully described herein.
In consideration of the foregoing and of the mutual promises contained below,
the parties agree as follows:
1. Definitions
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As used in this Agreement, the following terms shall have the following
meanings:
a. "FOX Entity" shall mean each network, television station or other entity
that is controlled by, or is wholly or partially owned by FBC or Fox
Entertainment Group, Inc., either directly or indirectly.
b. "FOX Network" shall mean any FOX Entity which FBC elects to promote on the
RNS (as defined below) pursuant to the terms of this Agreement.
c. "Lead-in, Lead-out Advertisements" shall mean advertisements or promotional
content prior to and following, respectively, playback of any FOX Network
programming.
d. "MFN Rate" shall mean the [***] rate charged by Replay for any of the RNS
offerings, including, but not limited to, Replay Zones and pre-configured Replay
Channels.
e. "Pause Advertisements" shall mean advertisements or promotional content
displayed when a viewer pauses Fox Network programming.
f. "ReplayTV Platform" shall mean the hardware for the Replay Network Service
(as defined below) and Replay Networks' reference implementation for such
hardware (including specifications, schematics, xxxx of materials, FPGA source,
PAL source, manufacturing documentation, and other documentation needed to
manufacture the ReplayTV Platform), the ReplayTV Platform client software
(including applications, operating system, device drivers, electronic program
guide, and other unique Replay software), related peripheral equipment such as
remote controls, and Replay owned patents, trademarks, and other intellectual
property needed to market the ReplayTV
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Platform. Initially, the ReplayTV Platform shall consist of a stand-alone
implementation (ReplayTV 1000 or ReplayTV 2000). Future ReplayTV Platforms,
offered by Replay and original equipment manufacturer ("OEM") partners, may
integrate additional features.
g. "Replay Network Service" or "RNS" shall mean the Replay Network Personal
Television Service, a television and Internet based delivery service that
enables customized, on-demand television viewing, custom content, and a
television navigation portal via the ReplayTV Platform. Examples of services
offered via the Replay Network Service might include Replay Zones (as defined
below), sponsored Replay Channels (as defined below), unique sponsored content,
messaging, commerce, software updates, electronic programming guide data, and
time services. As used in this Agreement, the term Replay Network Service or
RNS does not include any delivery or viewing of any content (including, without
limitation, the FOX Networks) over the internet other than the FOX Content which
is expressly licensed to Replay for delivery (but not viewing) over the
internet. The Replay Network Service includes "Basic" services, "Premium"
(monthly or periodic fee) services, and Pay-Per-View services.
h. "Replay Channels" are locally stored personalized channels with associated
television programming. Replay Channels may be created by a user, via explicit
specification of show or theme-based recording criteria. Replay Channels may
also be automatically created from a Replay Zone, based on information provided
by Replay or the content provider. Replay Channels are listed on the Replay
Guide, where all locally stored and available television programming is listed.
i. "Replay Zones" are promotional offerings that, when invoked, automatically
select and record television programming of interest to a user. Replay Zones are
displayed to the user on the Zone Guide, a television portal or launch location
from which pertinent television services may be selected for automatic
recording. When selected by the user, a Replay Zone may immediately select
programming to be recorded or may offer the user more detailed selection
criteria for automatically recording television programming.
j. "FOX Content" shall mean the content (other than the content of the FOX
Networks) that FBC elects to integrate into the RNS. This content may include
program information, text, pictures, graphics, sound, video and other data
related to television program services or personal television program services
related to each of the television program services.
2. Term
----
The term of this Agreement (the "Term") shall commence as of March 9, 2000
and expire one year later on March 8, 2001, unless earlier terminated in
accordance with this Agreement. FBC shall have a unilateral right to extend the
Term of this Agreement for two additional periods of one year each by providing
notice thereof to Replay no less
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than [***] prior to the end of the Term.
3. License; Reservation of Rights
------------------------------
a. In consideration of the relationship contemplated by this Agreement, FBC
hereby grants to Replay a [***] license to the [***] and all programming
included in the [***] and the [***], to the extent FBC owns the copyright in
such programming or such [***] or has received the requisite rights in such
programming or such [***] from the copyright holder to grant such license, for
[***] distribution through the ReplayTV Platform and the Replay Network Service
[***]. It is expressly understood that nothing herein shall be construed to
grant Replay a license to any FOX Entity that is not a FOX Network or a license
to exhibit [***] to the public for a fee or other consideration. It is expressly
understood that Replay intends to deliver, and is licensed to deliver, [***]
from Replay servers to Replay devices using communication services utilizing the
internet for storage on Replay devices only.
b. Nothing contained in this Agreement, the existence of this Agreement, nor
the issuance of any press release concerning or relating to this Agreement shall
constitute a waiver of or an estoppel against any right of any FOX Entity to
assert any right or claim against Replay with regard to any cause of action that
any FOX Entity may believe it may have against Replay, all of which rights are
hereby explicitly reserved.
4. Content Rights and Responsibilities
-----------------------------------
a. FBC will be responsible for creating, selecting, producing, and providing
all FOX Content during the Term of this Agreement and for clearing all rights
and obtaining all requisite consents for the use of the FOX Content in the
manner contemplated by this Agreement. FBC represents and warrants that the FOX
Content shall be consistent in quality and standards with the FOX Networks and
accordingly shall not contain programming that is defamatory, lewd, pornographic
or obscene. Replay shall not make any alterations, modifications, additions, or
deletions (including, without limitation, the overlaying of any advertisements
or promotional materials, text, graphics or interactive links other than any
such text or graphics that are operational or informational as it relates to the
use of the RNS) to any of the FOX Networks, the FOX Content (including, without
limitation, credit obligations, copyright, trademark notices and the like) or to
any programming on the FOX Networks or any FOX Content in any Replay Channel or
Replay Zone, except with the prior approval of FBC in its absolute discretion.
In addition, Replay agrees that it will not modify, insert or delete any
advertising or promotional materials in any programming on the FOX Networks or
in the FOX Content without the prior approval of FBC in its absolute discretion.
Replay hereby agrees that the requirement for FBC's prior approval of any such
alterations, modifications, additions or deletions to any advertisements or
promotional materials in programming on the FOX Networks or any FOX Content
shall [***]. Notwithstanding anything to the contrary in this Agreement,
Replay
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acknowledges that FBC does not believe that Replay has any rights to include
[***] without the prior approval of FBC in its absolute discretion.
Notwithstanding anything to the contrary in this Agreement, FBC acknowledges
that Replay believes it has all necessary rights to include [***] without the
prior approval of FBC. Notwithstanding anything to the contrary in this
Agreement, FBC and Replay agree that nothing contained in this Agreement shall
constitute:
i. a waiver of any right or claim against the other party;
ii. an estoppel against the right of the other party to assert any claim;
iii. an admission by Replay that it lacks a right or requires a license or
other permission from FBC; or
iv. an admission by FBC that a right has been granted or a concession has
been made to Replay that a license or other permission is not
required from FBC;
with respect to [***]. All such rights and claims are expressly reserved.
b. Replay shall provide a template and interface requirements (the "Interface
Requirements") to serve as a basis for each of the Replay Channels, FOX Network
Replay Zones (hereinafter "Fox Zone"), and other RNS components. Examples of
Interface Requirements include text fonts and sizes, color palettes, and maximum
image sizes, for the purpose of working within the RNS. Replay shall have the
right to verify that all [***] meets the Interface Requirements, and to
reject any content that does not meet the requirements. All [***] must
conform to the RNS content specifications, to be supplied to FBC, which
specifications may be modified by Replay at its sole discretion from time to
time with no less than thirty days prior notice of any such modification to FBC.
Replay shall use commercially reasonable efforts to implement a process which
will allow FBC to update, modify, delete or otherwise alter [***] on each
FOX Network Replay Channel and FOX Zone on no less than a weekly basis via a
telephone line or other mutually agreed upon electronic interface method. FBC
shall be allowed to update the look and feel of each FOX Network Replay Channel
and the FOX Zone (subject to the Interface Requirements) at reasonable time
intervals to be mutually agreed by FBC and Replay in accordance with delivery
requirements to be provided to FBC by Replay.
c. As between FBC and Replay, all right, title and interest in the FOX
Networks and the FOX Content shall remain the property of FBC. All right, title
and interest in the Replay Zones and the Replay Channels (other than the FOX
Networks, the FOX Content or any element thereof) shall remain the property of
Replay. Replay acknowledges and agrees that all trade names, trademarks and
service marks of FBC and its program suppliers (collectively, the "FBC Marks")
shall remain the property of FBC or such program supplier, as applicable, and
nothing in this Agreement shall confer on Replay any right of ownership in any
of the FBC Marks. All uses of the FBC
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Marks shall inure to the benefit of FBC or such program supplier, as applicable.
FBC acknowledges and agrees that all trade names, trademarks and service marks
of Replay (the "Replay Marks") shall remain the property of Replay and nothing
in this Agreement shall confer on FBC any right of ownership in any of the
Replay Marks. All uses of the Replay Marks shall inure to the benefit of Replay.
d. Replay shall include in its user instruction manuals (no earlier than the
next scheduled revision to such manuals) a statement that says -- ,"It is the
intent of Replay that this product be used in full compliance with the copyright
laws of the United States and that prior permission from copyright owners may be
required for certain public performances and certain commercial uses."
5. Replay Zones
------------
a. Replay shall develop a Replay Zone Guide in which FBC may promote the
programming of [***]. Replay shall provide FBC with prominent positioning to be
used for [***] on [***] of the RNS Zone Guide for [***]. In the event FBC
exercises its option to purchase at least [***] additional [***], Replay shall
provide FBC with prominent positioning to be used for [***] on [***] of the RNS
Zone Guide for (i) [***] if [***] of the RNS Zone Guide has [***] or (ii) [***]
if [***] of the RNS Zone Guide has [***]. Replay will have [***] on the [***] of
the RNS Zone Guide. In the event FBC exercises its option for additional Fox
Zones provided in paragraph 5(c) for [***] additional [***], Replay will provide
FBC additional FOX Zone slots within the [***] RNS Zone Guide pages as follows:
(i) [***] on [***] of the RNS Zone Guide and (ii) unless FBC has been provided
with [***] on [***] as described above, [***] within pages [***] of the RNS Zone
Guide. In the event FBC exercises its option for additional Zones provided in
paragraph 5(c) for [***] additional [***], Replay will provide FBC additional
FOX Zone slots within the [***] RNS Zone Guide pages as follows: (i) [***] on
[***] of the RNS Zone Guide and (ii) [***] within [***] of the RNS Zone Guide.
The number of Fox Zones on pages [***] shall be reduced to [***] at such time
that FBC has been provided [***] on [***] of the RNS Zone Guide. Subject to the
limitations described in the two immediately preceding sentences, FBC shall have
the right to move any of its FOX Zones to different pages within the RNS Zone
Guide. When selected by an RNS user, a FOX Zone will display a full screen of
programming options as developed and maintained by FBC to meet the Interface
Requirements. RNS will enable the RNS user to select one or more of the
available programming options set forth in the FOX Zone, which will
automatically provide for future recording of FOX Content or portions of the FOX
Networks. Such automatically recorded FOX Network programming shall reside in a
FOX Network Replay Channel which will be branded with a FBC specified logo,
according to a template provided by Replay. FBC will keep the
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programming information associated with the FOX Zones current and consistent
with FOX Network programming on a weekly basis. FBC shall be free to determine
[***] are promoted in a Zone and may promote [***] in each Replay Zone.
b. Replay and FBC will work together to establish processes for video and
graphics content download for FOX Zones to ReplayTV Platforms using the RNS and
FOX Networks. The parties agree that the amount of text, graphics, and video
download will be limited to a reasonable, cost-effective connection time for
platforms to the RNS. Downloads exceeding such reasonable connection time may
be subject to an [***], to be mutually agreed by Replay and FBC.
Replay will use best efforts to reach an initial deployment of the FOX Zones in
the second quarter of 2000 with a graphics implementation. It is currently
intended that a subsequent software release for ReplayTV Platforms will support
video-oriented promotional content in the FOX Zones.
c. Replay will provide to FBC up to [***] FOX Zones [***] for the Term. FBC
shall receive additional FOX Zones at a [***] (i) [***] of the Replay [***]
for the sponsorship of a Replay Zone and (ii) the [***] for the sponsorship of a
Replay Zone. FBC agrees that FBC (or a FOX Entity) will purchase [***] at [***]
of the [***] described in clauses (i) and (ii) of the immediately preceding
sentence for the Term of this Agreement and shall receive its [***] of the [***]
as a result of agreeing to this purchase. During the initial term of this
Agreement (but not during any additional period), FBC may elect to purchase up
to [***] additional Replay Zones at the rates described in the previous sentence
and, if FBC does so elect, FBC shall receive [***] of the [***] Zones described
in the first paragraph of this sentence for each Replay Zone it elects to
purchase pursuant to this sentence. Replay and FBC hereby agree that the initial
Replay [***] for the sponsorship of a Replay Zone shall be [***] , subject to
market increases during the Term of the Agreement as determined by Replay. For
purposes of this paragraph, a unit shall be considered to be an active unit in
any month during which the unit communicates with the RNS on at least one
occasion. Payments for Replay Zones shall commence on the [***] of (i) the [***]
in which Replay Zones are made available for FBC's use and (ii) the [***] in
which Replay commences charging all other participants who are contractually
obligated to pay for Replay Zone usage. Replay will only charge FBC for [***]
pursuant to the terms of this Agreement. Replay is only obligated to make FOX
Zones available on units licensed under Paragraph 3(a).
6. Advertising Services
--------------------
Subject to Section 19 (b) hereof, upon FBC's election, the parties will
negotiate in good faith for a period of [***] regarding opportunities
presented by such technology, including the method, mechanics and economics of
inserting or substituting advertisements and/or lead-in/lead-out advertisements,
zone and/or pause time
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advertisements into any FOX Content or any programs broadcast by one or more FOX
Networks (each an "Advertising Service"). In the event that the parties fail to
reach agreement prior to the expiration of the [***] period, Replay shall
promptly offer FBC the option to utilize for the benefit of any FOX Network any
and all Advertising Services that FBC desires pursuant to the More Favorable
Terms (as defined below) that Replay has offered to any other entity for
utilization of such Advertising Service(s).
7. Enhanced Zone Sponsored Programming
-----------------------------------
FBC may also elect to provide, and Replay may include as part of the RNS,
supplemental programming associated with FOX Zone sponsored programs. Such FOX
Content may include video out-takes, bloopers, behind-the-scenes footage,
special interviews, etc. which enhance the programming of the FOX Networks. The
applicable FOX Network may broadcast this enhanced programming content at its
discretion, either before or after the show associated with such program
enhancements has been broadcast, the promotional value of the placement of such
enhancements being taken into account. The RNS will automatically record this
enhanced content and append this content to the FOX Zone sponsored Replay
Channel, subject to non-conflicting tuning requirements and available storage
capacity for applicable ReplayTV Platforms. Replay agrees that there will be
[***] to FBC for any such programming enhancements tied to FOX Zone sponsored
programming for [***].
8. Pre-Configured Replay Channel
-----------------------------
Replay will use commercially reasonable efforts to pre-configure a FOX Network
Replay Channel containing up to [***] of deletable, pre-recorded FOX
Network programming content on the ReplayTV Platform. FBC will provide pre-
configured channel content in a mutually agreed format to Replay upon a mutually
agreed schedule. The pre-configured channel will be capable of automatically
recording future programs, based on the Replay Channel parameters defined by
FBC. Replay agrees to [***] to FBC for [***]for the Term of this Agreement. FBC
[***] additional pre-configured FOX Channels at a [***] which is the [***] (i)
[***] for a pre-configured Replay Channel and (ii) [***] for a pre-configured
Replay Channel.
9. Personalized, Premium Services
------------------------------
At FBC's election, the parties shall negotiate with each other in good faith the
terms on which they will cooperate to develop, launch and implement
personalized, premium FOX Network channel(s) during the Term. The launch of any
such service is predicated upon the mutual agreement of FBC and Replay that such
service will provide value to RNS premium subscribers and deliver content that
is unique and proprietary. To the extent that such mutual agreement is reached,
FBC and Replay will use reasonable commercial efforts to launch such service(s).
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10. FOX Network Replay Channel Branding
-----------------------------------
Replay will use commercially reasonable efforts to develop the ability to
overlay FOX Network brands on Replay Channels containing content broadcast on a
FOX Network, created as a result of show-based, theme-based, or zone-based
program selection. The FOX Network brand identifier will indicate the FOX
Network on which a program episode was originally broadcast. The FOX Network
brand identifier will be developed and provided by FBC according to a template
developed and specified by Replay. Replay agrees that there will be [***] to
FBC for any such branding pursuant to this paragraph.
11. Electronic-Commerce
-------------------
Replay shall use commercially reasonable efforts to develop the network
capability to support electronic-commerce transactions, including using industry
standard and approved security methods for billing of such transactions. At
FBC's election, the parties shall discuss in good faith developing electronic
purchasing of goods and services at a later date using the ReplayTV Platform.
The details of this program, including the schedule for deployment,
implementation detail, and economic terms, shall be developed and mutually
agreed to in an amendment to this Agreement.
12. Data
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a. Consistent with applicable laws, any applicable Replay privacy policy and
with Replay's agreement with its users of the RNS, Replay will collect
viewership and usage data during the Term of this Agreement, from users of the
RNS. This data will only be available in aggregate form and may be gathered via
statistical sampling. Replay will summarize this viewership information and
provide monthly viewership reports to FBC comprising the aggregate data
collected in a format to be mutually agreed upon between the parties.
b. Again, subject to applicable laws, Replay privacy policies and Replay's
agreement with its users of the RNS, Replay will also provide FBC with the
ability to conduct reasonable qualitative and/or quantitative research among RNS
users that also subscribe to personal television services, the scope of such
research being subject to approval by Replay, which approval shall not be
unreasonably withheld. For the purpose of conducting such research (and not for
the purposes of sale to third parties), upon FBC's request, Replay will provide
FBC's designated third party research vendor with access to RNS users via
telephone contact information. In such event, FBC agrees that no contact
information shall be provided by such third party research vendor to FBC and all
data obtained from RNS users by such third party research vendor is to be shared
and used by FBC and Replay for internal research purposes, with strict respect
to the privacy of such RNS users.
c. All data collected by Replay as set forth herein shall remain the property
of
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Replay and may be used by FBC only as provided herein. Replay shall provide
all of the information described in this Section 16 to FBC [***].
d. The parties hereto agree that (i) Replay shall not be obligated to provide
to FBC any of the aforedescribed information to the extent that such information
is specifically identifiable as information relating to programming that is
broadcast on any network other than the Fox Networks and (ii) without FBC's
prior approval, Replay shall not provide to any third party any of the
aforedescribed information to the extent that such information is specifically
identifiable as information relating to programming that is broadcast on any of
the Fox Networks, it being understood and agreed that this Section 16(c) is not
intended to prohibit the provision by Replay of any of the aforedescribed
information in aggregate form, such that individual programs, networks or
programmers cannot be identified.
13. Future Service Offerings
------------------------
Replay will manage the delivery of software upgrades to the ReplayTV Platform
via the RNS. Software updates will provide for field-upgradeable Replay Zones,
Replay Channels, features, interfaces, and bug fixes. During the Term of this
Agreement, FBC and Replay may agree to develop additional service offerings that
will become future elements of the RNS and may be downloaded to the installed
base of ReplayTV Platforms. Such service offerings shall be mutually agreed to
on a project-by-project basis, including the amount of financial, creative,
production, and technical resources each party shall commit.
14. Customer Support and Billing
----------------------------
Replay or OEM partners shall provide all customer support for ReplayTV Platforms
and the RNS service. Replay shall be responsible for end-user billing of premium
and subscription services.
15. Program Management
------------------
Replay agrees to assign a program manager to the FOX Networks for the purpose of
supporting FOX Content updates and managing the FOX Network portion of the RNS.
The support will be provided as reasonably necessary and without additional
charge.
16. Marketing, Promotion, and Advertising
-------------------------------------
a. Replay agrees to provide FBC with [***] ReplayTV Platforms [***]. All
ReplayTV Platforms provided to FBC will contain the highest memory/storage
capacity available at Effective Date.
b. Nothing in this Agreement shall obligate either party to share data with
the other party except (i) as outlined in Section 12(a); (ii) to the extent
Replay shares data
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developed by it alone, and not in conjunction with third parties, with other
media partners, Replay shall offer to share such data with FBC under the similar
terms and conditions; (iii) to the extent Replay and third party media partners
jointly develop data, Replay shall offer to share such data with FBC if the
third party media partner approves of such sharing and then subject to similar
terms and conditions as those terms and conditions under which Replay provides
such data to third party media companies.
c. FBC and Replay agree to issue a joint press release announcing the
relationship contemplated by this Agreement. Except as required by law, neither
FBC nor Replay will issue a press release or other public announcement
concerning this Agreement or the contents hereof, without the prior consent of
the other party, which consent shall not be unreasonably withheld.
d. During the Term of this Agreement, FBC and Replay agree to work together to
exploit reasonable and appropriate opportunities to promote the Replay Network
Service and each premium service, if any, on a mutually acceptable basis.
e. During the Term of this Agreement, Replay agrees to use commercially
reasonable efforts to include the FOX Network brands in Replay promotions and
advertisements for the ReplayTV Platform.
17. Right of First Negotiation
--------------------------
a) At FBC's election, Replay shall negotiate with FBC in good faith for a
period of [***] with respect to the utilization of future service offerings
referred to in Section 9, Section 11 and Section 13 (including without
limitation new Advertising Services) implemented on the RNS after the effective
date hereof. Notwithstanding the foregoing, Replay agrees that it will not
commence negotiations with any third party with respect to utilization of future
service offerings referred to in Section 9, Section 11 and Section 13 earlier
than the date on which Replay attempts, by written notice to FBC, to commence
such negotiations with FBC. If Replay reaches agreement with any third party
during the Term for any feature or service which was the subject of previous
negotiations with FBC pursuant to this Section 17, then Replay shall promptly
advise FBC and, upon request, offer to any FOX Network such feature or service
on identical terms, excluding any terms which cannot be reduced to a monetary
figure.
b) Notwithstanding anything to the contrary herein, in the event that Replay
desires to develop a premium service for the delivery of [***] of any nature
(the "Covered Matter"), Replay must negotiate with FBC first, [***] in good
faith and for a period of [***] regarding the terms on which it would
be willing to develop such service. The [***] period will commence upon [***]
notice from either party. At no time prior to or during such [***] negotiation
period shall Replay discuss with any third party any contract or agreement with
respect to the Covered Matter.
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18. Display of Logos
----------------
Each FOX Network shall have the right to display the Replay Networks logo on
such FOX Network's print and on or off-network television advertising. Such logo
may be displayed as a small icon in a peripheral portion of the FBC
advertisement or promotion. All such FBC print and on- or off-network television
advertising displaying the Replay Networks logo shall be subject to the prior
approval of Replay, which approval shall not be unreasonably withheld. Reply
Networks shall have the right to display the FOX Network logos and names in a
peripheral portion of Replay on- and off-network advertisements and promotion
media. All such Replay advertisements and promotional media displaying the FOX
Network logos and names shall be subject to the prior approval of FBC. Except as
expressly provided herein, neither party hereto shall have the right to use the
trademarks, tradenames, servicemarks, logos or any other xxxx or name
identifying the other party or any licensor of the other party without the prior
written consent of the owner of such name or xxxx.
19. Programming Fees and Discounts; Other Terms
-------------------------------------------
a. Within thirty days after the execution of this Agreement by each of the
parties hereto, FBC shall pay to Replay a [***] in the amount of
[***]. Replay shall bear any and all additional costs and expenses incurred by
it in the performance of its obligations under this Agreement. FBC will bear all
costs and expenses incurred in the creation of the FOX Networks and the FOX
Content, unless otherwise provided herein. During the Term of this Agreement and
any extension, renewal or restatement hereof, for all RNS related fees, charges
and expenses, each FOX Network shall receive the [***] of (i) the [***] and (ii)
the [***] discount (no less than [***] off of the Replay [***]) available on RNS
offerings.
b. Replay represents and warrants that, if Replay has entered into or enters
into any agreement with any third party media company, studio, network or
content provider with respect to any of the matters addressed in this Agreement,
any Advertising Service, any premium personalized service, any electronic
commerce service or any other current or future RNS offerings or services, which
agreement provides any such third party any more favorable terms (each, a "More
Favorable Term") than the comparable terms addressed in this Agreement or agreed
to by the parties pursuant to Sections 6,9, 11 and 13 hereof, then and in that
event, Replay shall promptly notify FBC of each such More Favorable Term. The
availability of any More Favorable Term may be subject to one, or a clearly
defined few, conditions, that is or are logically linked and directly tied to
such More Favorable Term and which conditions provide a direct, immediate or
foreseeable benefit to Replay; provided, that no FOX Network shall be obligated
to perform any condition that such entity cannot reasonably perform or that is
designed in such a way to make performance by a FOX Network impracticable,
unlikely or impossible or that any FOX Network previously has performed or
rendered a substantially equivalent performance hereunder. FBC shall have the
option, at any time
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WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
within [***] after FBC's receipt of notice of any More Favorable Term, to
elect by written notice to Replay, to accept such More Favorable Term, together
with any permitted conditions, in substitution for the comparable term in this
Agreement.
FBC acknowledges that it has waived its right under this paragraph 19(b) to
cause Replay to offer FBC any of the following terms:
a) a [***] initial term followed by a unilateral option for FBC
to extend the term for an additional [***]
b) more than [***] Replay Zones; and
c) the right to cause Replay to develop e-commerce capability; to provide
[***] Replay units to FBC for its use; or to promote the FBC/Replay
relationship on Replay's website.
No more than [***] during each 12 month period of the term, FBC may require
Replay to provide a written statement, signed by an officer of Replay,
certifying that Replay has fully complied with the provisions set forth in this
paragraph 19(b).
20. Confidentiality and Nondisclosure
---------------------------------
a. Each party (the "receiving party") shall treat as confidential all
Confidential Information (as hereinafter defined) of the other party (the
"disclosing party") and shall not use such Confidential Information except as
set forth in this Agreement. Each receiving party shall disclose Confidential
Information of the disclosing party only to its directors, officers, employees
and consultants and those of its corporate affiliates who are required to have
such information in order for the receiving party to carry out the transactions
contemplated by this Agreement and who have been advised of the obligations set
forth in this Section 20. The receiving party shall promptly notify the
disclosing party of any actual or suspected misuse or unauthorized disclosure of
the disclosing party's Confidential Information.
b. For purposes of this Agreement, "Confidential Information" of a disclosing
party shall mean any non-public and/or proprietary information of such party,
including, without limitation, the terms of this Agreement, technical data,
trade secrets, plans for products or services, marketing plans, software, and
financial documents or data, in whatever form or medium. "Confidential
Information" shall not include any information that (i) is in the public domain
or has entered the public domain through no fault of the receiving party; (ii)
was known to the receiving party at the time of disclosure to the receiving
party, as demonstrated by files in existence at the time of disclosure; (iii)
was independently developed by the receiving party without any use of the
Confidential Information, as demonstrated by files created at the time of such
independent development; or (iv) becomes known to the receiving party from a
source other than the disclosing party, which disclosure is not in violation of
the disclosing party's rights.
c. If the receiving party receives a subpoena or order for the disclosure of
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WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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Confidential Information of the disclosing party or is otherwise required to
disclose such information by law, the receiving party shall provide prompt
notice of such subpoena or order to the disclosing party to enable the
disclosing party to seek a protective order or otherwise prevent or restrict
such disclosure. Upon expiration or termination of this Agreement, each party
shall promptly return all Confidential Information of the other party.
d. The restrictions on use and disclosure of Confidential Information recited
in this Section shall expressly survive any termination or expiration of this
Agreement and shall remain in full force and effect for a period of [***]
following any such termination or expiration.
21. Indemnification
---------------
a. Replay will indemnify, defend and hold harmless each FOX Entity (and each
of their respective present and former employees, agents, directors,
shareholders and parent and subsidiary companies) against and from any and all
claims, damages, penalties, liabilities, costs and expenses (including, without
limitation, reasonable fees and disbursements of counsel and court costs, but
excluding lost profits and consequential damages) arising out of or relating to
(i) the breach by Replay of any of its covenants or obligations under this
Agreement (ii) the use of any of Replay's equipment or software, to the extent
that such use infringes, or is alleged to infringe, any U.S. copyright, mask
work, patent or trademark, or misappropriates, or is alleged to misappropriate,
any trade secret and (iii) any claim of infringement or misappropriation of any
third party's copyright, patent, trademark, trade secret or other proprietary or
intellectual property right or right of publicity which arises as a result of
Replay's use of any material with respect to which Fox has given Replay
reasonable prior notice that Fox does not have the requisite rights to grant to
Replay for such use.
b. FBC will indemnify, defend and hold harmless Replay and each entity that it
controls, is controlled by or is under common control with (and each of their
respective present and former employees, agents, directors, shareholders and
parent and subsidiary companies) against and from any and all claims, damages,
penalties, liabilities, costs and expenses (including, without limitation,
reasonable fees and disbursements of counsel and court costs, but excluding lost
profits and consequential damages) arising out of or relating to: (i) the breach
by FBC of any of its covenants or obligations under this Agreement; and (ii) any
claim that the FOX Networks or the FOX Content (A) infringes on, or constitutes
a misappropriation of any third party's copyright, patent, trademark, trade
secret or other proprietary or intellectual property right, or right of
publicity or privacy; (B) is defamatory or trade libelous; (C) is lewd,
pornographic or obscene; or (D) violates any laws regarding unfair competition,
anti-discrimination or false advertising; provided that Replay shall, to like
--------
extent, indemnify, defend and forever hold each FOX Entity harmless from and
against any and all claims, damages, penalties, liabilities, costs and expenses
(including, without limitation, reasonable fees and disbursements of counsel and
court costs, but excluding lost profits and
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[***] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
consequential damages) arising out of any deletion from, alteration of, or
addition to, the FOX Content by Replay or creation of any material by Replay
(such as the creation of promotional material).
c. In the event that legal proceeding are instituted or a claim is asserted
which may give rise to indemnification, the party seeking indemnification (the
"Indemnified Party") shall provide prompt notice of such proceeding or claim to
the party from whom indemnification is sought (the "Indemnifying Party"). The
Indemnifying Party shall be entitled to defend against, negotiate, settle or
otherwise deal with any such proceeding or claim, represented by counsel of its
own choice at its own expense; provided that the Indemnified Party may
--------
participate in any such proceeding, with counsel of its own choice at its own
expense, and no settlement of any such claim may be effected without the consent
of the Indemnified Party, which consent will not be unreasonably withheld.
22. Termination of Agreement; Survival of Provisions
------------------------------------------------
a. This Agreement may be terminated by either party as follows:
(i) by any party upon a breach by another party of a material term of this
Agreement and such breach shall remain unremedied for at least [***] after
notice from a non-breaching party; and
(ii) by any party if any of the following events shall occur with respect to
another party (A) a receiver is appointed for such other party or its assets;
(B) such other party becomes insolvent, is generally unable to pay its debts as
they become due, makes an assignment for the benefit of its creditors or seeks
relief under any bankruptcy or insolvency law; (C) if proceedings are commenced
against such other party under any bankruptcy or insolvency law, such
proceedings have not been vacated within [***] of the commencement thereof;
or (D) if such other party is liquidated, dissolved or ceases to do
business.
b. The provisions of Sections 4 and 19 of this Agreement shall survive the
termination or expiration of this Agreement.
23. FOX Entities
------------
a. If FBC elects, Replay shall engage in discussions with any FOX Entity with
respect to the negotiation of a mutually agreeable arrangement between Replay
and each such FOX Entity on terms and conditions substantially similar to the
terms and conditions set forth in this Agreement to the extent such terms and
conditions are relevant and applicable to such other arrangements.
Notwithstanding the foregoing, nothing contained herein shall prohibit any other
FOX Entity from negotiating terms that are different from the terms contained
herein, or which augment or supplement the terms contained herein.
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WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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b. Replay hereby agrees that FBC shall be entitled to designate up to three
representatives to the Replay Advisory Council for the Term of this Agreement
and any extensions hereof. The Replay Advisory Council shall meet on a quarterly
basis at times mutually agreed and shall provide a forum for the discussion of
industry developments and advances in technology as they relate to Replay's
strategy and operations.
24. Miscellaneous
-------------
a. The relationship of the parties established by this Agreement is that of
independent contractors, and nothing contained in this Agreement will be
construed: (i) to give any party the power to direct and control the day-to-day
activities of the other; (ii) to constitute the parties as partners, joint
ventures, co-owners or otherwise as participants in a joint or common
undertaking; or (iii) to allow any party to create or assume any obligation on
behalf of the other for any purpose whatsoever.
b. If the performance of this Agreement or any obligations hereunder is
prevented, restricted or interfered with by reason of fire or other casualty or
accident, strikes or labor disputes, war or other violence, any law, order,
proclamation, regulation, ordinance, demand or requirement of any government
agency, or any other act or condition beyond the reasonable control of the
parties hereto, the party so affected upon giving prompt notice to the other
parties shall be excused from such performance during such prevention,
restriction or interference.
c. This Agreement contains the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes and terminates all
prior arrangements or understandings (whether written or oral) with respect
thereto. The terms of this Agreement may be amended or waived only by a written
instrument signed by each of the parties hereto. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon the parties and
their respective successors and assigns.
d. None of the parties shall assign this Agreement or any of its rights,
obligations or privileges hereunder without the prior written consent of the
other parties hereto, which consent shall not be unreasonably withheld;
provided, that FBC may so assign to any FOX Entity in connection with a sale of
all or substantially all of its assets. Subject to the foregoing, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective permitted successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
e. This Agreement and all acts and transactions pursuant hereto and the rights
and obligations of the parties hereto shall be governed, construed and
interpreted in
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accordance with the laws of the State of California without giving effect to
principles of conflicts of law.
f. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one
instrument.
g. The section headings used in this Agreement are used for convenience only
and are not to be considered in construing or interpreting this Agreement.
h. Any notice required or permitted by this Agreement shall be given in
writing and shall be deemed sufficient upon receipt, when delivered personally
or by courier, overnight delivery service or confirmed facsimile, or forty-eight
hours after being deposited in the regular mail as certified or registered mail
(airmail if sent internationally) with postage prepaid, if such notice is
addressed to the party to be notified at such party's address as set forth
above, or as subsequently modified by written notice.
i. If one or more provisions of this Agreement are held to be unenforceable
under applicable law, the parties agree to renegotiate such provision in good
faith, in order to maintain the economic position enjoyed by each party as
close as possible to that under the provision rendered unenforceable. In the
event that the parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (i) such provision shall be excluded from
this Agreement, (ii) the balance of this Agreement shall be interpreted as if
such provision were so excluded and (iii) the balance of this Agreement shall be
enforceable in accordance with its terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the date first written above.
ReplayTV, Inc.
By: /s/ Xxx XxXxxxxxx
Name: Xxx XxXxxxxxx
Title: Chief Executive Officer and Chairman
FOX BROADCASTING COMPANY
By: /s/ Xxxxxx Quicksilver
Name: Xxxxxx Quicksilver
Title: President
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