AGREEMENT dated as of July 1, 1998 between USA
NETWORKS, a general partnership ("USA") and CNET
INC., a Delaware corporation (the "Contractor"),
with respect to the grant to USA of certain rights
in the series of four, thirty-minute television
programs entitled "CNET CENTRAL," "THE WEB," "THE
NEW EDGE," and a fourth series (the "Fourth
Series") which is presently untitled (each such
program a "Program," and collectively, the
"Programs" or the "Series").
1. The Programs. (a) Contractor represents and warrants that it is
the sole creator of the Programs, and that it owns and controls the
exclusive right to distribute and license the Programs. Contractor
hereby grants to USA the exclusive right to transmit, and authorize the
transmission of, the Programs during the Term (as defined in Section 4
below) throughout the United States, its territories and possessions,
including Puerto Rico and, on a nonexclusive basis, all U.S. Armed
Forces Bases throughout the world (the "Territory"). USA, however, may
transmit the Programs only over the USA Network program service and/or
the Sci Fi Channel program service (the "USA networks") in the English
and/or Spanish language to each of its affiliates for transmission by
such affiliates. Such affiliates may consist of CATV, MDS, MMDS,
SMATV, MATV, DBS and TRVO dishes or any similar services now known or
hereafter created. During the Term, and for thirty (30) days
thereafter, Contractor shall not transmit or otherwise authorize the
transmission of the Programs (or any promotions or advertisements of
any kind or nature for future transmissions of the Programs within the
Territory by Contractor or third parties), in any language, by any
other means within the Territory, including, without limitation, over-
the-air television networks, over-the-air television stations, basic or
pay cable program services, locally-originated cable channels, via
personal computers, video on demand or similar technologies.
Notwithstanding the foregoing, Contractor, after the date such Program
is scheduled to be transmitted the first time on the USA Network
program service and/or the Sci-Fi Channel program service, as the case
may be, (a) may authorize the transmission of any "CNet Central"
Program, solely within the San Francisco ADI on a local broadcast
station, (b) may transmit excerpts of any Program (not to exceed five
minutes (5:00) in aggregate in length) on any on-line computer service
owned by Contractor, and (c) may transmit excerpts of any Program (not
to exceed one minute and thirty seconds (1:30) in the aggregate for
each Program) in connection with the promotion and advertising of such
Program or the Series on the USA networks (or local broadcast station)
or for sale on a syndicated basis into local news markets. In
connection with subsection (a) above, Contractor shall advise USA, in
writing, at least thirty (30) days prior to the first such broadcast as
to the local broadcast station in the San Francisco ADI on which the
"CNet Central Programs" will be transmitted.
(b) Each Program shall have an aggregate content time of
twenty-two minutes twenty-five seconds (22:25) and shall have four (4)
program segments, and three (3) commercial breaks represented by
crystal black slugs. Each of the Programs shall consist generally of a
magazine style format containing various segments on the topics of
computer technology, digital technology and related subjects, shall
include software and hardware reviews and news about the computer
industry and computer technology. Contractor shall deliver to USA
thirty-two (32) original "CNet Central" Programs, twenty-six (26)
original "The Web" Programs, twenty-six (26) original "The New Edge"
Programs, twenty-six (26) original Fourth Series Programs, and twenty
(20) refreshed "CNet Central" Programs (edited and revised from
Programs previously delivered, including updated wrap arounds and
news), in accordance with the provisions of Section 8 below, so as to
accommodate USA's transmission schedule of one original or refreshed
"CNet Central" Program and one original or repeat Program of each other
Series each week of the Term. Contractor agrees, at its cost, to edit
any original Program of each Series other than "CNet Central," as may
be requested by USA so that if, and when, it is transmitted on a repeat
basis later in the Term, the Program will be up-to-date. The number of
original or refreshed "CNet Central" Programs and the number of
original and updated repeat Programs of each other Series to be
delivered during each broadcast quarter during the Term and the order
in which they are to be delivered shall be determined jointly by USA
and Contractor and shall be confirmed in writing to USA by Contractor
at least thirty (30) days prior to the commencement of the applicable
broadcast quarter.
(c) Subject to USA's prior written approval of the
particular advertisers, which shall not be unreasonably withheld,
Contractor may incorporate up to two, fifteen seconds (0:15) of closing
billboards in each Program, so long as the billboards are produced by
Contractor and provided to advertisers as part of a value-added media
package. Contractor hereby acknowledges that any disapproval by USA of
any billboards which, in USA's judgment, are competitive with USA's
efforts to sell commercial advertising time within or adjacent to the
Programs shall not be deemed to be unreasonable.
2. Production. (a) Contractor shall consult with USA
throughout the pre-production, production, and post-production
processes for the Programs in a manner similar to its consultation with
respect to the Programs previously produced for USA. USA shall have
significant input into the creative development of the Programs with
the understanding that all Programs will be produced in a manner
similar to the way the "CNet Central," "The Web," and "The New Edge"
series have been produced to date (i.e. a professionally-produced
program designed to both entertain and educate). USA shall have the
right to approve the content of each Program, such approval not to be
unreasonably withheld. In the event USA disapproves of any Program,
USA shall so advise Contractor, in writing, setting forth the reasons
for any such disapproval. Contractor either (a) shall promptly cure
such defects in the Program and deliver the cured Program to USA (on a
mutually-agreed upon date, no later than five (5) days after notice of
USA's disapproval), or (b) shall promptly provide USA with a substitute
Program (on a mutually-agreed upon date, no later than five (5) days
after notice of USA's disapproval).
(b) Subject to USA's prior approval (not to be unreasonably
withheld), Contractor may include within the Programs a reasonable
number of cross-promotions for Contractor's online sites, comparable to
the cross-promotions included in Programs previously produced for USA
during the first six months of 1998.
3. Practices and Standards. (a) Contractor represents and
warrants that the Programs shall conform to the program practices and
standards of the USA networks from time-to-time established (which
conform generally to U.S. broadcast standards) including, without
limitation, restrictions as to language, nudity and excessive violence
and shall be the same standards applicable to similar types of
programming transmitted on the USA networks. USA shall have the right,
in its sole discretion, to edit and/or time compress each of the
Programs, and/or delete any portion(s) thereof, (i) to ensure that each
such Program meets the program practices and standards of the
applicable USA networks, and/or (ii) to conform the Programs, if
necessary, to the aggregate running time set forth in Section 1(b)
above. Contractor shall reimburse USA for the cost of any editing
required above. In no event, shall any credits in the Programs be
deleted or changed (provided they are of customary length), including,
without limitation, any credits of Contractor or copyright notices
(however, USA may reduce the size of the end credits and/or copyright
notices so that they can be displayed on a split screen).
(b) USA shall have the right to create, or cause to be
created, Spanish language versions of the Programs (either dubbed or
subtitled) for transmission in accordance with the terms of this
Agreement. Upon Contractor's request, USA shall supply copies of such
versions to Contractor, at no charge, and Contractor may use such
versions for transmissions outside the Territory. In the event that
Contractor creates or causes any Spanish language versions of the
Programs to be created, Contractor shall provide copies of same to USA,
at no additional charge, for USA's transmission in accordance with the
terms of this Agreement.
4. Term. The term of this Agreement shall be for a period of
one year, commencing July 1, 1998 and ending June 30, 1999 (the
"Term"). USA and Contractor agree to negotiate exclusively with one
another for a period of sixty (60) days commencing January 1, 1999 with
respect to an extension of this Agreement with respect to the Series.
In no event shall Contractor negotiate with any third party with
respect to the Series prior to or during such exclusive negotiation
period. In the event that the parties are unable to reach a final
agreement during such period, then Contractor, on the last day of such
period, shall submit to USA its final offer, in writing (the "Offer").
USA then shall have ten (10) business days to accept or reject the
Offer. If USA rejects the Offer, Contractor may enter into
negotiations with third parties with respect to the Series. In the
event that Contractor reaches a tentative agreement pertaining to the
Series with a third party, on terms and conditions less favorable to
Contractor than those contained in the Offer, then USA shall have a
right of first refusal, exercisable within ten (10) business days
following receipt by USA of written notice detailing the terms of the
tentative third-party agreement, as to any such agreement which
Contractor intends to accept. It is understood that USA shall be
required to meet only those terms and conditions contained in the
tentative third party agreement which are reducible to determinable
sums of money. If USA does not meet such terms and conditions,
Contractor will not enter into an agreement with such third party on
terms and conditions less favorable to it than those contained in the
notice of the tentative third-party agreement without again affording
USA a right of first refusal as above provided.
5. Transmissions. USA may transmit each of the Programs an
unlimited number of times on each of the USA networks during the Term
throughout the Territory. Such transmissions may be at such times, on
such dates, and in such order, as USA, in its sole discretion, shall
determine. It is USA's current intent to transmit the Programs, as
part of a consistent two-hour "block" of programming, two (2) times per
week on the Sci-Fi Channel program service (from 9:00 a.m. to 11:00
a.m. on Saturdays and from 12:00 noon to 2:00 p.m. on Sundays), and,
commencing September 14, 1998, one (1) time per week on the USA Network
program service (from 6:00 a.m. to 8:00 a.m. on Sundays). It also is
USA's current intent, prior to September 14, 1998, to transmit the
"CNet Central" Programs two (2) times per week on the USA Network
program service (Mondays (Tuesday mornings) at 1:00 a.m. and Sundays at
6:00 a.m.) Nonetheless, USA shall have no obligation to transmit the
Programs at all; provided it shall remain liable for the payments set
forth in Section 7 below.
6. Additional Rights. (a) In the event that, during the
Term, Contractor desires to develop additional television programming
for satellite-delivered program services, Contractor shall so notify
USA, in writing. USA and Contractor then shall negotiate exclusively
with one another for a period of fifty (50) days, following USA's
receipt of such written notice from Contractor with respect thereto.
In no event may Contractor negotiate with any third party(s) with
respect to such additional television programming prior to or during
such exclusive negotiation period. In the event that the parties are
unable to reach a final agreement during such period, then, on the last
day of such period, Contractor shall submit to USA its final offer, in
writing (the "Offer"). USA then shall have ten (10) business days to
accept or reject the Offer. If USA rejects the Offer, subject to
Section 6(b) below, Contractor shall be free to negotiate with and
enter into agreements with third party(s) with respect to such
additional television programming, provided that the financial terms
and conditions contained in any proposed third party agreement are no
less favorable to Contractor than those contained in the Offer.
Notwithstanding the provisions of this Section 6(a), Contractor need
not comply with these provisions with respect to (i) developing
additional television programming which will be transmitted solely on a
television program service wholly-owned by Contractor either directly
or indirectly (a "Stand-alone Service") or on a television program
service at least thirty percent (30%) of which is owned by Contractor
either directly or indirectly (a "Partially-owned Service"), or (ii)
any television programming developed by third parties using
Contractor's studio and production staff.
(b) In addition to the provisions of Section 6(a) above,
as long as USA is transmitting at least two Contractor-produced
television series on the Sci-Fi Channel program service, one of which
must be the "CNet Central" Series (and the "CNet Central" Series on the
USA Network program service), Contractor may not authorize any
additional "CNet-branded" television programming to be transmitted on
any other cable network within the Territory (other than on a Stand-
alone Service or Partially-owned Service, if any). This Section 6(b)
also shall apply if, during the Term, USA is not so transmitting two
Contractor-produced television series, because Contractor failed to
offer the "CNet Central" Series and at least two other comparable
series of computer-oriented programs for transmission on the Sci-Fi
Channel program service. Nothing in this Section 6(b) shall prohibit
Contractor from running a customary producer credit at the end of a
series it produces.
(c) In the event that, during the Term, Contractor
desires to develop a satellite-delivered programming network, focused
on computers, digital technologies and/or the Internet, it shall so
notify USA in writing and shall negotiate exclusively with USA with
respect thereto for a period of fifty (50) days from the date of such
notice. In no event may Contractor negotiate with any third party(s)
with respect to any such programming network prior to or during such
exclusive negotiation period. In the event the parties fail to reach
an agreement during such exclusive negotiation period and, thereafter,
Contractor intends to enter into an agreement with a third party with
respect to any such programming network, then Contractor shall give USA
at least ninety (90) days prior written notice thereof. In such event,
USA then shall have the right, during such ninety-day period, to
terminate this Agreement, whereupon USA shall cease to have any further
obligations hereunder. Notwithstanding the provisions of this Section
6(c), Contractor need not comply with these provisions with respect to
developing a Stand-alone Service. Also, nothing contained herein shall
restrict Contractor from selling equity or debt securities in
Contractor to any third party.
7. Payment. (a) As full and complete consideration for the
rights granted herein, USA shall pay to Contractor the amount of Five
Million Nine Hundred Two Thousand Nine Hundred Fifty-Eight Dollars
($5,902,958), allocated as follows: Two Million One Hundred Thirty-Six
Thousand Dollars ($2,136,000) with respect to the "CNet Central" Series
($63,000 per each of 32 original Programs and $6,000 for each of 20
refreshed Programs), One Million One Hundred Ninety-Four Thousand Nine
Hundred Eighty-Six Dollars ($1,194,986) with respect to "The Web"
Series ($45,961 per each of 26 original Programs), One Million Two
Hundred Eighty-Five Thousand Nine Hundred Eighty-Six Dollars
($1,285,986) with respect to "The New Edge" Series ($49,461 per each of
26 original Programs), and One Million Two Hundred Eighty-Five Thousand
Nine Hundred Eighty-Six Dollars ($1,285,986) with respect to the Fourth
Series ($49,461 per each of 26 original Programs). This payment is
based on USA's reimbursing Contractor for its costs directly
attributable to the production of each Program, including appropriate
programming and production staff, equipment and facility charges (but
excluding any allocations for Contractor's executive personnel,
corporate administrative costs, or contingencies); not to exceed such
amounts. USA shall have the right to audit such costs. USA shall make
payment to Contractor ten (10) days after each month during the Term,
based on the number of original and refreshed Programs transmitted
during such month. In the event Contractor expended less than any
amount set forth above on any Programs transmitted during a calendar
quarter, then an appropriate adjustment will be made within 30 days
after such calendar quarter. No payment need be made by USA with
respect to any updated Programs.
(b) In further consideration for various marketing
services provided by USA in connection with this Agreement, Contractor
shall pay USA the sum of Seven Hundred Fifty Thousand Dollars
($750,000) in two equal installments of $375,000 each, the first of
which shall be due on January 1, 1999 and the second of which shall be
due on May 30, 1999. USA's disapproval of any closing billboards or
cross-promotions by Contractor pursuant to Sections 1(c) or 2(b) above
shall not in any way affect Contractor's payment obligations pursuant
to this Section 7(b).
8. Delivery. (a) Contractor shall deliver each of the
Programs hereunder to USA at its network control center offices in
Jersey City, New Jersey, or such other location as USA may reasonably
designate, at least three (3) business days prior to the scheduled
transmission of such Program. Delivery of the Programs shall be at
Contractor's sole cost and expense. The Programs shall be on digital
beta videotape, color-balanced, in stereo, fully-titled with audio in
perfect synchronization with the photographic action, meeting the video
and audio technical standards of the applicable USA networks and
complete and suitable in all respects for the transmissions authorized
hereunder. Promptly after receipt of each original videotape, USA
either (i) shall reproduce the Program thereon and promptly return, at
USA's expense, such original videotape to Contractor or (ii) shall
retain the original videotape for the transmissions hereunder. USA
shall pay the cost of any such reproductions it may make of the
original videotape. In the event that the original videotape of any
Program is not of sufficient quality to meet the technical requirements
set forth herein, then USA may reject such original videotape without
any penalty, and Contractor shall promptly provide a corrected or
substitute videotape to USA.
(b) USA may use its reproduction(s) of the Programs, or
any excerpt(s) thereof, for the following purposes: (i) in perpetuity,
for file, reference, audition, sales and publicity purposes, (ii) prior
to and during the Term, to advertise and publicize the Programs, the
USA networks or the cable industry in general, and (iii) during the
Term, for the transmissions authorized hereunder.
9. Commercial Advertising. Each of the Programs shall be
produced in a format so as to have an aggregate running time and
commercial format as set forth in Section 1(b) above. USA shall have
the right to sell all commercial advertising time reserved during and
adjacent to each Program as USA, in its sole discretion, desires. USA
shall be entitled to retain all revenues derived from its sale or use
of commercial advertising time.
10. Representations and Warranties of Contractor. Contractor
represents and warrants that:
(a) Contractor owns or controls the entire and exclusive
distribution and exhibition rights in and to each of the Programs
throughout the Territory, and has the full legal right, power and
authority to enter into and perform this Agreement and to grant the
rights contained herein to USA, including, without limitation, the
right to transmit the Programs as herein provided; there is no
outstanding contract, commitment, arrangement or legal impediment
binding on Contractor of any kind which is in conflict with this
Agreement or which might in any way limit, restrict or impair the
rights granted to USA hereunder; and so long as this Agreement remains
in effect Contractor will not grant, or purport to grant to any person
rights of any kind in the Programs, the exercise of which will derogate
from, or be inconsistent with, the rights granted to USA hereunder;
(b) The Programs licensed herein do not, and the exercise
by USA or by any affiliate of USA of the rights herein granted will
not, infringe upon the common law rights, or the copyright, or the
literary, dramatic, music, motion picture, or patent rights, or the
trademark or trade name, of any person, and do not and will not violate
the private, civil or property rights, or the right of privacy, of any
person;
(c) The synchronization rights for the music contained in
the Programs have been or will be obtained by Contractor hereunder and
USA shall have no liability for any payments in connection therewith;
in addition, Contractor represents and warrants that the performing
rights for the music contained in the Programs are (i) controlled by
ASCAP, BMI or SESAC, (ii) controlled by Contractor, or (iii) in the
public domain. USA agrees that, as between Contractor and USA, in the
event any fees are owing to a performing rights society as set forth in
(i) above with respect to the Programs, USA shall be liable for the
payment of such fees and shall indemnify and hold harmless Contractor
against the payment of any such fees. Contractor shall provide USA
with appropriate cue sheets as to all music included in each of the
Programs;
(d) In the production and making of the Programs, all
applicable collective bargaining agreements and all applicable rules
and regulations of any unions having jurisdiction in the premises were
complied with; all persons who performed services in or in connection
with the Programs received full payment with respect thereto and with
respect to the transmission of the Programs provided in this Agreement;
and no fee, compensation or any other payment whatsoever will ever be
payable by USA to any producer, director, actor, writer or any other
person who performed services in or in connection with the Programs by
reason of the use thereof as provided in this Agreement;
(e) In connection with the Programs distributed hereunder,
USA, any of USA's affiliates, each sponsor and such sponsor's
advertising agency, and each USA licensee, shall have the right and may
grant to others the right, both prior to and during the Term, to
reproduce, print, publish or disseminate in any medium, the portrait,
picture, name, likeness, and voice of, and biographical material
concerning, each person appearing therein and all other persons
connected with the production of the Programs, the title of the
Programs, any music, or excerpts thereof (whether original or
recomposed) in each Programs, Contractor's name and oral and/or visual
portions of the Programs, any excerpt of the script of the Programs or
any artwork or design created by or for Contractor in connection with
the production of the Programs, as news or information, for the
purposes of trade or for advertising purposes; provided, however, no
direct endorsement by any such person of any product or service shall
be used without such person's consent and that any materials used by
USA in accordance with this subsection (e) shall be used by USA in a
manner consistent with how it was presented in the Program(s); and
(f) Contractor shall procure and maintain so long as this
Agreement shall be in effect, and for one year thereafter, at no cost
to USA, a policy of television producer's liability insurance
applicable to all transmissions hereunder, acceptable to USA, in
amounts not to be less than $1,000,000/$3,000,000, insuring USA, all
advertisers having advertising in or in conjunction with the
transmission hereunder of the Programs, and any affiliate of USA,
against any and all liability resulting from the transmission hereunder
of the Programs; such insurance has standard coverage, including, but
not limited to, coverage with respect to defamation, infringement of
rights material to be carried or in the manner of presentation thereof,
infringement of privacy rights, and unauthorized use of materials in
the Programs hereunder; and such policy includes a provision requiring
the insurance company to give USA prompt notice of any revision,
modification or cancellation thereof. Contractor will furnish USA with
a certificate confirming the issuance of such insurance policy.
11. Representations and Warranties of USA. USA hereby
represents and warrants that (a) it is free to enter into and fully
perform the terms and conditions of this Agreement and it has the full
power and authority to do so and (b) there is no outstanding contract,
commitment, arrangement or legal impediment binding on USA of any kind
which is in conflict with this Agreement or which might in any way
limit, restrict, or impair the rights granted to Contractor hereunder.
12. Indemnification. (a) Contractor at all times shall
indemnify and hold harmless USA, its parents and affiliated entities,
their and any of USA's affiliates, from and against any and all claims,
damages, liabilities, costs and expenses, including reasonable counsel
fees, arising out of or based upon any of the following:
(i) the transmission of each of the Programs in
accordance with the terms of this Agreement;
(ii) the authorized use of any materials furnished
by Contractor hereunder; or
(iii) any breach by Contractor of any representation,
warranty, or agreement made by Contractor herein.
(b) USA at all times shall indemnify and hold harmless
Contractor, its parents and affiliated entities, from and against any
and all claims, damages, liabilities, costs and expenses, including
reasonable counsel fees, arising out of or based upon any breach by USA
of any representation, warranty, or agreement made by USA herein.
(c) The indemnifications provided in Section 12(a) and
Section 12(b) above shall be subject to the condition that the party
seeking indemnification shall promptly notify the indemnifying party of
any claim or litigation for which indemnification is sought. The
indemnifying party, at its option, may assume the defense of any such
claim or litigation. If the indemnifying party assumes the defense of
any such claim or litigation, its obligation with respect thereto shall
be limited to holding the indemnified party harmless from and against
any loss, damage or cost caused by or arising out of any judgment or
settlement approved by the indemnifying party in connection therewith.
(d) The party seeking indemnification shall cooperate
fully with the reasonable requests of the indemnifying party in its
participation in, and control of, any compromise, settlement,
litigation or other resolution or disposition of any such claim or
litigation.
13. Force Majeure. If by reason of fire, flood, epidemic,
earthquake, explosion, accident, labor dispute or strike, act of God or
a public enemy, riot or civil disturbance, war (declared or undeclared)
or armed conflict, the failure of satellite, transponder or technical
facilities, any municipal ordinance, any state or federal law,
governmental order or regulation, or any other similar thing or
occurrence not within the parties' control (all such events shall
hereinafter be collectively called "Force Majeure Events"), the
commencement, delivery or transmission of the Programs or any Series is
materially hampered, interrupted or interfered with, USA, upon written
notice to Contractor, may suspend the Term hereof with respect to the
Programs or such Series until such Force Majeure Event has terminated.
If the Term is so suspended, USA may extend the Term with respect to
the Programs for the length of time it is suspended pursuant to this
Section 13; provided, however, if such suspension continues for a
period of six (6) consecutive weeks, USA or Contractor, at any time
thereafter during the suspension period, upon written notice to the
other, may terminate this Agreement with respect to such Series, or, at
USA's option, in its entirety. In the event of a termination by
Contractor hereunder (unless such termination is the result of a Force
Majeure Event preventing USA from transmitting the Programs, as opposed
to a Force Majeure Event preventing Contractor from producing or
delivering the Programs), USA shall be entitled to the benefits of
Sections 6(a) and 6(b) as if the provisions of Section 6(b) had been
satisfied and to the benefits of Section 7(b).
14. Default. In the event of a material breach by either party
hereto (the "defaulting party") of any representation, warranty,
agreement, term, condition or provision of this Agreement, the other
party hereto, in addition to such other rights as it may have, shall
have the right to terminate this Agreement (or in the case of USA, as
to the particular Series, at USA's option) by giving written notice of
termination to the defaulting party; provided, however, that within
fifteen (15) days following its receipt of written notification from
the other party detailing the nature of such material breach and its
intent to terminate this Agreement, the defaulting party, if possible,
may cure such breach and provide written notice thereof to the other
party. In the event USA terminates this Agreement either as to a
particular Series or in its entirety pursuant to this Section 14, USA
still shall be entitled to the benefits of Sections 6(a) and 6(b) as if
the provisions of Section 6(b) had been satisfied.
15. Independent Contractors. The parties hereto expressly
agree that the relationship between them hereunder is that of two
principals dealing with each other as independent contractors subject
to the terms and conditions of this Agreement. Neither party shall
have the right, power, or authority at any time to act on behalf or, or
represent, the other party, but each party hereto shall be separately
and entirely liable for its own debts in all respects.
16. Assignment. Neither party shall assign its rights and
obligations under this Agreement without the prior written consent of
the other. Notwithstanding the foregoing, USA shall have the right,
without the prior written consent of Contractor, to assign this
Agreement to any entity which acquires all or substantially all of
USA's assets, to any entity in which either one of the current general
partners retains a substantial interest, to either of the current
general partners of USA, or to any entity which may acquire all or
substantially all of the assets of either of the current general
partners of USA.
17. Notices. Any and all notices, communications, and demands
required or desired to be given hereunder by either party hereto shall
be in writing and shall be validly given or made if served personally,
by telecopy, or by an overnight delivery service or if deposited in the
United States mail, certified or registered, postage prepaid, return
receipt requested. If such notice or demand is served personally or by
telecopy, service shall be conclusively deemed made on the same day (or
if such day is not a business day, then the next business day); if by
an overnight delivery service, on the next business day; and if by
registered or certified mail in the manner above provided, on the
second subsequent business day. To be effective, any service hereunder
shall be to the addresses set forth below:
CONTRACTOR: CNET, INC.
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
USA: USA NETWORKS
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: President - Operations
Fax: (000) 000-0000
Copy to: USA NETWORKS
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: President - Programming and
Marketing
Fax: (000) 000-0000
Either party hereto may change its address for the purpose of receiving
notices or demands as herein provided by written notice given in the
manner aforesaid to the other party hereto, which notice of change of
address shall not become effective, however, until the actual receipt
thereof by the other party.
18. New York Law. This Agreement shall be construed,
interpreted and enforced in accordance with and shall be governed by
the laws of the State of New York applicable to agreements entered into
and wholly to be performed therein.
19. Review of Programs. Notwithstanding anything to the
contrary contained herein, and in addition to USA's right to approve
the content of each Program as set forth in Section 3 above, USA may
review any of the Programs delivered hereunder for their technical
quality. In the event that USA, in the exercise of its reasonable
discretion, determines that any of the Programs are not readily
transferable to D-3 digital videotape or that the videotape to which
the Programs is transferred is not of sufficient quality for
transmission as part of the USA networks, USA may reject such Program.
In such event Contractor may, at its option, (a) cure such Program so
as to make it acceptable to USA or (b) provide a substitute Program
which shall be acceptable to USA. In the event of the occurrence of
(a) or (b) above, Contractor shall cure the Program or provide a
substitute Program in a timely manner so as to enable USA to continue
to transmit the Programs in accordance with USA's schedule for the
transmission of such Programs.
20. Confidentiality. USA and Contractor each represents and
warrants that it shall not disclose to any third party (other than its
employees, in their capacity as such) any information with respect to
the financial terms and provisions of this Agreement except (a) to the
extent necessary to comply with the requirements of any guilds or
unions, (b) to the extent necessary to comply with law or the valid
order of a court of competent jurisdiction, in which event the party so
complying shall so notify the other party as promptly as practicable
(and, if possible, prior to making any disclosure) and shall seek
confidential treatment of such information, (c) as part of its normal
reporting or review procedure to its parent company, stockholders,
potential investors, creditors, auditors or its attorneys and such
persons, as the case may be, agree to be bound by the provisions of
this Section 20, (d) in order to enforce its rights pursuant to this
Agreement, or (e) as may be required pursuant to the federal securities
laws or the rules and regulations of the Securities and Exchange
Commission ("SEC"). To the extent this Agreement is described in the
registration statement or any other document filed with the SEC, USA
shall have the right to review and comment on such description (and
Contractor shall use diligent efforts to accommodate such comments
within the time constraints of the offering process).
21. Miscellaneous. (a) This Agreement sets forth the entire
agreement and understanding of the parties relating to the subject
matter hereof, and supersedes all prior agreements, arrangements and
understandings relating to the subject matter hereof.
(b) Any provision herein found by a court of law to be
void or unenforceable shall not affect the validity or enforceability
of any other provision of this Agreement.
(c) Each party hereto shall execute any and all further
documents which either party hereto may deem necessary and proper to
carry out the purposes of this Agreement.
(d) The construction of this Agreement shall not be
construed against the party causing its preparation, but shall be
construed as if both parties prepared this Agreement.
(e) All captions contained herein are for convenience of
reference only.
(f) If so requested by USA, Contractor shall use its best
efforts to have a representative of USA, as selected by USA and
reasonably approved by Contractor, elected to the board of directors of
Contractor throughout the Term.
(g) Throughout the Term, USA shall supply to Contractor
such ratings (including, without limitation, Xxxxxxx ratings) and
results of audience surveys, focus groups and other research involving
the Programs as may be available to USA, or performed by USA, in its
sole discretion, subject to any third-party restrictions on the
disclosure of such information.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CNET, INC. USA NETWORKS
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxx
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx Xxxx
Title: COO Title: VP Business Affairs and General
Counsel
