1
[CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL
PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED
AND HAVE BEEN SEPARATELY FILED WITH
THE COMMISSION.]
Exhibit 10.8
PROGRAMMING CONTENT AGREEMENT
This Programming Content Agreement ("AGREEMENT") is made and entered
into by and between Vulcan Ventures, Incorporated, a Washington corporation
("VULCAN"), and High Speed Access Corp., a Delaware corporation ("HSAC"), as of
this 25th day of November, 1998 (the "EFFECTIVE DATE"), with reference to the
following facts:
A. Reference is hereby made to the Systems Access and Investment
Agreement of even date herewith ("ACCESS AGREEMENT") by and
among HSAC, Vulcan, Charter Communications, Inc. ("CHARTER"),
and Marcus Cable, Inc. ("MARCUS"), and to the Network Services
Agreement of even date herewith ("NETWORK SERVICES AGREEMENT")
by and among HSAC, Marcus, and Charter. Pursuant to those
agreements, HSAC has been retained to provide certain Internet
access and related services, to individuals residing within
certain areas served by Charter and Marcus.
B. Vulcan has agreed to make an equity investment in HSAC in
accordance with the terms and conditions set forth in the
Access Agreement and the Other Agreements referred to (and as
defined) therein.
C. Pursuant to the Access Agreement and the Network Services
Agreement, HSAC may also provide Internet access and related
services to subscribers and potential subscribers of Cable
Systems owned, controlled, or operated by MSOs not affiliated
with Vulcan or its affiliates.
D. HSAC, subject to certain limitations set forth in this
Agreement, desires to grant to Vulcan the exclusive right to
provide programming content to all Cable Systems and
Subscribers serviced by HSAC.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. In addition to the other capitalized terms defined elsewhere in
this Agreement, the following terms will have the meanings set forth below:
1.1 "CABLE SYSTEM" means any radio frequency ("RF") cable television
franchise or hybrid fiber-coaxial RF plant distribution system serving a
geographically proximal group of residences, businesses, or other locations.
Cable Systems include both One-Way Systems and Two-Way Systems, and further
include both Vulcan Systems and Independent Systems.
1.2 "CONTENT" means information services, Web Pages, Web Sites,
Telephony, EPGs, other multimedia information now known or hereafter developed,
in digital or analog form, or such other forms as may now exist or hereafter
become available. Content includes, without limitation, text, graphics, audio,
video, audiovisual images, still images, animation, hypertext documents, data,
interactive services, other services accessible using the World Wide Web, and
the like or similar materials or services.
2
1.3 "ELECTRONIC PROGRAM GUIDE" or "EPG" means a television screen or
Web Page that contains information, including without limitation schedule and
channel information, relating to television programs, Vulcan Content, or other
Content delivered to Subscribers.
1.4 "HSAC CONTENT" means the Web Pages, Startup Pages, EPGs, and other
Content designed, created or acquired by HSAC and included within the HSAC
Services in accordance with the terms of this Agreement. HSAC Content includes,
without limitation, the look, feel, and configuration of any Internet or World
Wide Web services designed, created or acquired by HSAC, the underlying user
interfaces and screen templates, the programming structure of such Internet or
World Wide Web services, all other such Content designed, created or acquired as
HSAC may include within the HSAC Services in accordance with the terms of this
Agreement, and all IP Rights relating thereto.
1.5 "HSAC MARKS" means all trademarks, service marks, trade names,
logos, designs, and other identifying marks of any kind other than the Vulcan
Marks associated with or used in connection with the HSAC Services.
1.6 "HSAC NETWORK EQUIPMENT" means the equipment that HSAC employs for
operation of the HSAC Services by connecting such equipment to the head-end of
Cable Systems. HSAC Network Equipment includes, without limitation, all
monitoring devices, telecommunications equipment, storage devices, computing and
data processing equipment, and software.
1.7 "HSAC SERVICES" means the design, construction (excluding the
RF/plant portion of the Cable System), installation, activation, operation,
sales and marketing, customer service, billing, provision and maintenance of
Internet access and related services from the Method of Access closest to the
Subscriber (including, without limitation, a Subscriber's computer and any of
its internal or external communication devices) through any Cable System or
other Method of Access to an Internet Portal including, without limitation
interfacing HSAC Network Equipment with Cable Systems to allow Subscribers, for
a monthly fee or other charges, to browse the World Wide Web, read news groups,
and receive and send electronic mail ("E-mail") and perform related activities.
1.8 "INDEPENDENT SYSTEM" means any Cable System owned, operated, or
otherwise controlled by an MSO unaffiliated with Vulcan, Charter, Marcus or any
of their affiliates.
1.9 "INTERNET" means the decentralized, worldwide network of computers
commonly referred to as the Internet, as it now exists or is hereafter
developed, modified, changed, evolved or replaced, and includes but is not
limited to the World Wide Web.
1.10 "INTERNET PORTAL" means a physical site sometimes referred to as a
"point of presence" where there is a collection of equipment including routers,
data storage devices, modems that are used to connect to customers and leased
telecommunication lines that connect such site directly to a part of the
Internet backbone.
-2-
3
1.11 "INTERNET SERVICE PROVIDER" or "ISP" means any entity that
provides its clients access to the Internet, or the means by which clients can
establish a presence on the Internet.
1.12 "IP RIGHTS" means any and all rights: (i) under worldwide laws of
copyright, patent, trademark, trade dress, trade secrets, and unfair
competition; (ii) under "droit moral" or moral rights or other similar laws
existing in anywhere in the Universe; (iii) relating to the development and use
of databases, mask works, or know-how; (iv) subsisting in any and all
applications, registrations, renewals, extensions, restorations, continuations,
divisionals, or foreign counterparts of any of the foregoing; and, (v) to
register or reserve business names, trade names, or Internet domain names.
1.13 "LOCAL CONTENT" means Content designed, created, or acquired by
HSAC uniquely for the needs of Subscribers in a particular geographic region
where HSAC provides HSAC Services.
1.14 "METHOD OF ACCESS" means the manner in which a Subscriber accesses
HSAC Services, whether existing now or hereafter developed, including without
limitation through a computer, set-top box, television, or other device, and
further including, without limitation, delivery over cable lines, satellite
broadcast, cellular transmission, telephone lines, RF transmission or any other
methods of access now known or hereafter developed. A Method of Access will be
without regard to the nature of the experience presented to users, whether such
experience is visual, audio, or otherwise.
1.15 "MSO" means an entity that owns, controls, or operates Cable
Systems that is generally referred to as a Multiple System Operator in the cable
television industry.
1.16 "ONE-WAY SYSTEM" means a Cable System that can only deliver
television signals, data, or other digital or analog information downstream from
the cable head end to the Cable Subscriber, and must use another means,
including, without limitation, a telephone line and modem, to send any
information from the Subscriber to an Internet Portal.
1.17 "STARTUP PAGE" means the first or default television or computer
screen displayed to Subscribers every time that they access the HSAC Services as
a means to obtain access to the Internet, the Vulcan Content, or any other
interactive material available via the HSAC Services. A Startup Page may or may
not be in the form of a Web Page, and may be different for different Cable
Systems.
1.18 "SUBSCRIBER" means an individual, family, or other entity that
receives cable television services from Vulcan or its affiliates and resides
within a Cable System, or receives HSAC Services from HSAC (whether or not such
Subscriber receives cable television services from Vulcan or its affiliates or
resides within a Cable System), regardless of such Subscriber's Method of
Access, or both.
1.19 "TELEPHONY" means the use of HSAC Services or Vulcan Content to
provide Subscribers with the ability to send and receive audio data, including
without limitation the ability to place and receive telephone calls, using HSAC
Network Equipment or Vulcan Equipment, rather than traditional telephone
equipment.
-3-
4
1.20 "TWO-WAY SYSTEM" means a Cable System that can both send and
deliver television signals, data, or other digital or analog information
upstream and downstream to and from the cable head-end to and from the
Subscriber, without using another means to send or receive any information from
the Subscriber to an Internet Portal.
1.21 "VULCAN CONTENT" means the Web Pages, Startup Pages, EPGs, and
other Content designated by Vulcan to HSAC as "Vulcan Content" under the terms
of this Agreement. Vulcan Content includes, without limitation, the look, feel,
and configuration of any Web Pages, Startup Pages, EPG, other Content, and any
other Internet or World Wide Web services provided by Vulcan, the underlying
user interfaces and screen templates, the programming structure of any of the
foregoing, and all other such Content as Vulcan will determine to provide in its
sole discretion, and all IP Rights relating thereto.
1.22 "VULCAN EQUIPMENT" means any equipment that is owned or controlled
by Vulcan and includes, without limitation, all monitoring devices,
telecommunications equipment, storage devices, computing and data processing
equipment, and software.
1.23 "VULCAN MARKS" means all trademarks, service marks, trade names,
logos, designs, and other identifying marks of any kind owned or controlled by
Vulcan, Charter, Marcus, or any of their affiliates, that are associated with or
used in connection with the Vulcan Content, including without limitation the
marks "Charter," "Charter Mail," "Charter Pipeline," and "Marcus OnLine."
1.24 "VULCAN SYSTEM" means any Cable System now or hereafter owned,
operated, or otherwise controlled by Vulcan or its affiliates, including without
limitation Charter and Marcus.
1.25 "WEB PAGE" means a document specially formatted in hypertext
markup language ("HTML"), which supports links to other documents, as well as
graphics, audio, and video files. A group of Web Pages linked together and share
the same World Wide Web domain name constitutes a "WEB SITE."
1.26 "WORLD WIDE WEB" means the system of Internet servers that
supports HTML-formatted documents. Not all Internet servers are part of the
World Wide Web.
1.27 Other Definitions. The following additional defined terms shall
have the meanings ascribed to them in the Sections indicated below:
"COMPETING CONTENT" ...... 2.1.2
"CONFIDENTIAL INFORMATION" 8.1
"DISCLOSING PARTY" ....... 8.1
"GRANDFATHERED SYSTEM" ... 2.3
"NEW ACCESS METHOD" ...... 2.2.4
"NOTICES" ................ 13.18
"RECIPIENT" .............. 8.1
"RF" ..................... 1.1
-4-
5
2. HSAC Services and Vulcan Content.
2.1 Exclusive Provision of Vulcan Content. Vulcan Content will be
exclusive within the HSAC Services as follows:
2.1.1 Must Carry. HSAC must carry, on an exclusive basis, as
part of the HSAC Services for any and all Cable Systems and Subscribers for
which HSAC provides the HSAC Services and/or any other Internet access or
related services, regardless of whether any such Cable System is or any such
Subscribers reside within a Vulcan System or an Independent System, and
regardless of Subscriber's Method of Access, all Vulcan Content, and any and all
other Content that Vulcan designates as part of the Vulcan Content. From time to
time during the term of this Agreement, Vulcan may designate Content for
inclusion in the Vulcan Content, or may modify the Vulcan Content, by notifying
HSAC in writing of the Content to be included. HSAC will add such Content to the
HSAC Services and/or any other Internet access or related services within ten
(10) days of its designation by Vulcan as part of the Vulcan Content. HSAC will
not be in breach of the foregoing obligation if HSAC does not receive any
specialized equipment required to carry the Vulcan Content, which equipment is
otherwise not required in order to perform the HSAC Services, on a timely basis
following the submission of a complete order by HSAC to the vendor of such
equipment before the lead times required by such vendor in order to deliver such
equipment in sufficient time for HSAC to meet such ten (10)-day period.
2.1.2 No Competition. HSAC will not, with respect to any Cable
System, any other Method of Access, or for any Subscribers develop, provide,
license, or otherwise include any information, services, Web Pages or Web Sites,
audio, video, sound, Telephony, or other Content that competes, directly or
indirectly, with Vulcan Content ("COMPETING CONTENT"). The decision whether
Content competes with Vulcan Content will be in Vulcan's sole discretion. Vulcan
will request in writing the immediate removal of any Competing Content, which
request HSAC will honor within three (3) days. Failure to honor such a request
will constitute a material breach of this agreement.
2.1.3 HSAC Services. Vulcan acknowledges that HSAC has the
right under this Agreement to create and include HSAC Content and publish such
HSAC Content on a Web Site owned or controlled by HSAC ("HSAC's Web Site") in
accordance with the following provisions: (a) such Web Site shall be directly
accessible through no more than one browser user interface button ("XXX") to be
located on Vulcan's Startup Page (the size, placement, and other aspects of such
XXX shall be determined by Vulcan at its sole discretion), (b) such Web Site
will include on the start page thereof at least one XXX to a nationally
recognized Internet Search engine (e.g., Yahooo or Excite), (c) such Web Site
will include on the start page thereof at least one XXX to Vulcan's Startup
Page, (d) any HSAC Content on such Web Site will be limited to Local Content and
XXXx to other Web Pages, (e) any HSAC Content included on such Web Site will not
constitute Competing Content, (f) such Web Site will have a domain name that is
different from the Vulcan Startup Page and related Web Sites, and (g)
notwithstanding clause (d) above, HSAC shall have the right to sell advertising
and otherwise to derive and retain revenues from such HSAC Content.
-5-
6
2.2 Form of Content. The Vulcan Content may include, in Vulcan's sole
discretion, any combination of the following:
2.2.1 Startup Page. Vulcan may, in its sole discretion,
design, or have designed a Startup Page, or multiple Startup Pages, for Cable
Systems and other Subscribers. Until such time as Vulcan's Startup Page is
available, HSAC may develop a Startup Page for any Cable System or Subscribers
subject to the branding provisions of Section 2.2.5; provided, that, such
Startup Page will be replaced by Vulcan's Startup Page when it is available. To
the extent technically feasible, HSAC will ensure that any Startup Page provided
by Vulcan is the first or default screen encountered by Subscribers when they
access HSAC Services, regardless of the Method of Access, and that such Startup
Page and Vulcan Content cannot be replaced or bypassed by Subscribers without
Vulcan's express written permission.
2.2.2 EPG. If HSAC's Website or HSAC Services includes an EPG,
then prior to inclusion of such EPG as part of such HSAC's Website or HSAC
Services, HSAC will present the proposed design, form, content, and aesthetics
of such EPG to Vulcan for Vulcan's approval, which approval may be withheld in
Vulcan's sole discretion. If Vulcan disapproves of the proposed EPG, HSAC will
redesign the EPG based on input from Vulcan, or Vulcan may, in its sole
discretion, provide to HSAC an EPG of its own design for inclusion as part of
the HSAC's Website or HSAC Services. In addition, Vulcan will have the right to
dictate to HSAC the priority to be afforded various listings, such as the Vulcan
Content, any television channels, and other services, within any EPG included on
HSAC's Web Site or in HSAC Service.
2.2.3 [Intentionally Deleted]
2.2.4 Other Points of Subscriber Access. To the extent that
Subscribers are able or become able to access HSAC Services without relying on
any of the methods described in Section 2.2.1 above ("NEW ACCESS METHOD"), HSAC
will immediately notify Vulcan of the New Access Method, and HSAC and Vulcan
will cooperate in good faith to ensure that the New Access Method provides
exclusively for the delivery of Vulcan Content.
2.2.5 Branding. The Vulcan Startup Page (and any temporary
Startup Page developed by HSAC under Section 2.2.1 above) will be marketed,
deployed, and supported only under brands, service marks, and trademarks
designated by Vulcan or its affiliates. Vulcan will be responsible for
registering such brands, service marks, and trademarks and obtaining a matching
or closely related Internet domain name. Such trademarks and domain names will
be owned by Vulcan or an affiliate. If such domain names are temporarily owned
or controlled by HSAC, HSAC will take all steps necessary promptly to transfer
and assign such domain names to Vulcan or its designated affiliate. Vulcan will
include the brand, service xxxx or trademark of any Independent System utilizing
the HSAC Services on the Vulcan Startup Page for such Independent System (the
size, placement, and other aspects of such brand, service xxxx or trademark
shall be determined by Vulcan, in its sole discretion, provided, that such
brand, service xxxx or trademark shall be reasonably visible to Subscribers ).
-6-
7
2.2.6 Property Rights Notices. HSAC will include in the Vulcan
Content such proprietary rights notices, credits, World Wide Web hyperlinks, and
other such information as Vulcan directs, and will take no steps to alter,
remove, obscure, or otherwise interfere with any proprietary rights notices in
the Vulcan Content.
2.2.7 Delivery of Vulcan Content to HSAC. Vulcan shall be
responsible for the delivery of all Vulcan Content to HSAC for inclusion in HSAC
Services. Vulcan Content shall be delivered to HSAC in electronic form suitable
for inclusion in the HSAC Services, either to a central HSAC server or to
equipment located in the headend of each Cable System, as designated by HSAC.
HSAC and Vulcan shall reasonably cooperate to determine the most suitable format
for the electronic delivery of the Vulcan Content.
2.3 Pre-Existing Systems. Notwithstanding anything in Section 2.1 to
the contrary, HSAC may itself provide or have provided by a third party Content
other than Vulcan Content to those Cable Systems listed in Schedule 2.3 (each a
"GRANDFATHERED SYSTEM"). HSAC will use its best efforts to convert each
Grandfathered System to exclusive use of Vulcan Content upon the expiration or
termination of the agreements between HSAC and Grandfathered Systems, or at such
earlier dates as those agreements otherwise permit.
2.4 HSAC as ISP. HSAC may, from time to time, enter into agreements
with Independent Systems whereby HSAC will serve as an ISP within each such
Independent System. HSAC will notify Vulcan in writing within ten (10) days of
entering into any agreement with an Independent System, and HSAC will
exclusively provide Vulcan Content, in accordance with Section 2.1 above, to
each such Independent System, as though that Independent System were a Cable
System subject to the terms of this Agreement.
2.4.1 Exception: Private Label ISP. Subject to HSAC's
obtaining Vulcan's prior written consent on a case-by-case basis, and Section
2.1 notwithstanding, HSAC may enter into a relationship or arrangements with an
Independent System pursuant to which HSAC provides ISP services that: (i) are
not required be delivered exclusively under the Vulcan Marks, and (ii) do not
include the requirement that the Independent System exclusively receive Vulcan
Content. The terms and conditions of any such relationship or arrangements shall
be subject to Vulcan's prior written approval.
2.4.2 Tailored Content. Within ten (10) days of entering into
an ISP or similar agreement with an Independent System, HSAC will notify Vulcan
in writing of such agreement and provide sufficient information concerning the
Independent System for Vulcan to be able to tailor the Vulcan Content to the
market served by the Independent System. If HSAC has not received Vulcan Content
tailored to the Independent System within thirty (30) days of delivery of notice
of the agreement, then HSAC will use Vulcan Content already in use for Cable
Systems, until such time as Vulcan provides tailored Content to HSAC for the
Independent System.
2.5 [Intentionally Deleted]
2.6 Other HSAC Activities. Nothing in this Agreement shall be construed
to restrict HSAC's right to provide Web Site design, management, and hosting
services, as
-7-
8
long as such services and activities are not reasonably deemed by Vulcan to be
competitive with Vulcan Content.
2.7 Pricing. The Vulcan Content will be provided to Cable Systems
accessing the Vulcan Content through the HSAC Services free of charge until ten
years from the Effective Date. At such time, Vulcan may charge HSAC, the Vulcan
Systems, and the Independent Systems for the provision of the Vulcan Content,
provided that any fee that Vulcan may charge HSAC for the provision of the
Vulcan Content shall not be more than the lowest fee charged by Vulcan to
another similar ISP for substantially the same Vulcan Content. Nothing in this
Section 2.7 shall prevent Vulcan from deriving revenues from the Vulcan Content
from third parties, including, without limitation, by charging Subscribers for
access to particular Vulcan Content, from the sale of advertising on any Vulcan
Content, the provision of XXXx to Web Pages, and other transactions.
3. Development of Content.
3.1 Development of Vulcan Content. Subject to the terms and conditions
of this Agreement and HSAC's technical requirements, Vulcan will, in its sole
discretion, develop, acquire, or license all Content that will make up the
Vulcan Content, will have final input on all business and technical decisions
concerning how best to deliver Vulcan Content to Cable Systems and to
Subscribers, and will be able to update the Vulcan Content from time to time in
its sole discretion.
3.2 Cooperation. HSAC will, at its own cost and expense, provide
commercially reasonable assistance Vulcan in the development of Vulcan Content
by providing Vulcan any and all support required for Vulcan to develop Vulcan
Content that can be delivered using HSAC Network Equipment to Cable Systems and
from Cable Systems to Subscribers. Such assistance will include, without
limitation, the provision by HSAC of: (i) all technical information, materials,
and requirements of the HSAC Network Equipment; (ii) access to HSAC engineers
and technical personnel to the extent necessary to ensure accurate and reliable
delivery of Vulcan Content to Cable Systems and to Subscribers; and (iii) access
to test equipment, test suites, software, facilities, and simulations in order
for Vulcan to test the operation of the Vulcan Content on the HSAC Network
Equipment.
4. Marketing and Promotional Activities.
4.1 HSAC Marketing. HSAC's responsibilities with respect to marketing
and promotion of the HSAC Services and the Vulcan Content will be as set forth
in the Network Services Agreement and the Access Agreement, with the further
obligation that HSAC conduct such marketing and promotion to Independent
Systems. Vulcan shall make available, on the same basis as Vulcan makes
available to other distributors of the Vulcan Content, existing training and
marketing materials for HSAC's marketing and MSO sales personnel to assist such
personnel in marketing the HSAC Service, including the Vulcan Content, to MSOs
and to end users.
4.2 Vulcan Marketing. Vulcan will have the right but not the obligation
to market and promote the Vulcan Content and the HSAC Services to Subscribers
and to Cable Systems by any means that Vulcan deems effective.
-8-
9
5. Provision of HSAC Services and Deployment of Vulcan Content.
5.1 By HSAC. HSAC will have the responsibility for providing HSAC
Services and HSAC Network Equipment to Cable Systems and Subscribers. HSAC will,
at its own cost and expense, install all HSAC Network Equipment necessary for
the delivery of Vulcan Content to Cable Systems and Subscribers. To the extent
that the accurate and reliable delivery of Vulcan Content to Subscribers
requires the purchase of equipment at any head-end that exceeds an aggregate
cost of three thousand dollars ($3,000) for such head-end during the term of
this Agreement, or the purchase of additional bandwidth to permit the delivery
and/or update of such Content, Vulcan shall reimburse HSAC for the cost of such
equipment and bandwidth. Except to the extent set forth in Section 11.4 of this
Agreement, Vulcan will have no responsibility for, or liability arising out of,
the use, maintenance, or operation of the HSAC Network Equipment.
5.2 By Vulcan. Vulcan will have the responsibility for delivering
Vulcan Content to HSAC for inclusion in delivery of HSAC Services to Cable
Systems, in accordance with Section 2.2.7 of this Agreement. Vulcan may, in its
sole discretion, localize or tailor Vulcan Content to suit the markets of
particular Cable Systems and/or Subscribers. Vulcan and HSAC will determine
mutually agreeable times, methods, and media for delivery of the Vulcan Content,
as well as for future delivery of Content to be added to the Vulcan Content.
5.3 Deployment of Vulcan Content. Subject to Section 2.2.7 of this
Agreement, HSAC shall operate and manage the HSAC Network Equipment in such a
manner to insure the reliable delivery of Vulcan Content to Subscribers at
sufficiently high rates of transmission. Vulcan may, in its sole discretion,
determine that the HSAC Network Equipment or certain installations of the HSAC
Network Equipment is or are not providing Subscribers with access to the Vulcan
Content with sufficient reliability or at sufficiently high rates of
transmission. In such event, HSAC will, at HSAC's expense (subject to Section
5.1 above), place Vulcan Equipment with the HSAC Network Equipment, and will
install, operate, and maintain such Vulcan Equipment.
6. Licenses.
6.1 By HSAC.
6.1.1 HSAC IP Rights. HSAC grants to Vulcan a worldwide,
non-exclusive, royalty-free license to use any and all of HSAC IP Rights as well
as any software, hardware, materials, or other information provided by HSAC to
Vulcan, in connection with the delivery of the Vulcan Content and Vulcan's
performance of its obligations under this Agreement.
6.1.2 HSAC Confidential Information. HSAC grants to Vulcan a
worldwide, non-exclusive, royalty-free license to use any and all Confidential
Information provided by HSAC, as well as any software, hardware, materials, or
other information provided by HSAC to Vulcan, to the extent necessary to provide
Vulcan Content pursuant hereto.
-9-
10
6.1.3 HSAC Quality Control. All marketing and promotional
materials, and any materials that have an HSAC Xxxx on them, will comply with
the Quality Controls specified on Schedule B hereto. Before any such materials
prepared by Vulcan are used, Vulcan will transmit a copy to HSAC, and HSAC will
have fifteen (15) days in which to reject such materials or to request changes
be made to such materials. If HSAC does not respond to Vulcan within such
fifteen (15) day period, such materials will be deemed approved for
distribution.
6.2 By Vulcan.
6.2.1 Vulcan Content. Vulcan grants to HSAC a worldwide,
non-exclusive, royalty-free, license to use, receive, store, and distribute
Vulcan Content to Cable Systems and Subscribers authorized to receive such
Vulcan Content in accordance with any restrictions applicable to such Vulcan
Content.
6.2.2 Vulcan Confidential Information. Vulcan grants to HSAC a
worldwide, non-exclusive, royalty-free license to use any and all Confidential
Information provided by Vulcan, as well as any software, hardware, materials, or
other information provided by Vulcan to HSAC, solely to ensure and maintain the
compatibility of HSAC Services with Vulcan Content.
6.2.3 Vulcan Marks. Vulcan grants to HSAC a worldwide,
non-exclusive, royalty-free license to use, reproduce, and distribute any and
all Vulcan Marks, solely for use in connection with the performance of its
obligations hereunder; provided, that: (i) any use will be with the prior
written approval of Vulcan, which approval will not be unreasonably withheld,
(ii) any goodwill associated with the use of the Vulcan Marks will inure to the
benefit of Vulcan, and (iii) any use will comply with Schedule B.
6.2.4 Vulcan Quality Control. All marketing and promotional
materials, and any materials that have a Vulcan Xxxx on them, will comply with
the Quality Controls specified on Schedule B hereto. Before any such materials
prepared by HSAC are used, HSAC will transmit a copy to Vulcan, and Vulcan will
have fifteen (15) days in which to reject such materials or to request changes
be made to such materials. If Vulcan does not respond to HSAC within such
fifteen (15) day period such materials will be deemed approved for distribution.
6.3 Restrictions. HSAC will not reproduce, copy, alter, modify, edit,
or distribute the Vulcan Content except as permitted by this Agreement. In
addition, HSAC will not modify, alter, disassemble, decompile, or reverse
engineer any part of the Vulcan Content. A violation by HSAC of this Section 6.3
will constitute a material breach of this Agreement.
-10-
11
7. Ownership and Intellectual Property Rights.
7.1 Vulcan. Vulcan owns and retains all right, title, and interest in
and to the Vulcan IP Rights, including without limitation: (i) the Vulcan
Content, (ii) the Vulcan Marks, and (iii) any Confidential Information and any
hardware, software, materials, or other information provided by Vulcan to HSAC
under this Agreement.
7.2 HSAC. HSAC owns and retains all right, title and interest in and to
the HSAC IP Rights, including without limitation: (i) the HSAC Services, (ii)
the HSAC Marks, and (iii) any Confidential Information and any hardware,
software, materials, or other information provided by HSAC to Vulcan under this
Agreement.
8. Confidential Information.
8.1 Disclosure. HSAC and Vulcan acknowledge that either party
("DISCLOSING PARTY") may disclose to the other party ("RECIPIENT") certain
information related to the Disclosing Party's business in any form, including,
without limitation: (i) customer information, (ii) the terms and conditions of
this Agreement, (iii) all dates, summaries, reports or information of all kinds,
whether oral or written, acquired, devised or developed in any manner by or from
the Disclosing Party's files, and (iv) financial, statistical, personnel, or
technical information, software or documentation, which the Disclosing Party
deems proprietary or confidential ("CONFIDENTIAL INFORMATION"). In the event
that Recipient receives such Confidential Information, Recipient agrees to keep
such information confidential by using the same care and discretion that it uses
with its own information that it designates as confidential.
8.2 Limitation on Use. The Recipient will not permit the duplication,
use, or disclosure of any Confidential Information to any person (other than an
employee, agent, or representative of the Recipient who must have such
information for performance of its obligation hereunder), unless such
duplication, use, or disclosure is specifically authorized by the Disclosing
Party in writing or required by law. The Recipient will: (i) not disclose any
Confidential Information to any third person without the prior written consent
of the Disclosing Party, (ii) not use, directly, indirectly, or in concert with
any other person, any Confidential Information for purposes other than
performance of obligations under this Agreement, and (iii) use reasonable
diligence, and in no event less than that degree of care that the Recipient uses
with respect to its own Confidential Information of like nature, to prevent the
unauthorized disclosure or reproduction of such information. Without limiting
the generality of the foregoing, to the extent that this Agreement permits the
copying of Confidential Information, all copies must bear the same
confidentiality notices, legends, and intellectual property rights designations
that appear on the original versions.
8.3 The above obligations of confidentiality will terminate five (5)
years after expiration of this Agreement, and will not impose an obligation on
Recipient with respect to any portion of the information received that:
8.3.1 is now generally known or available, or hereafter,
through no act or failure on the part of Recipient, becomes generally known or
available;
-11-
12
8.3.2 is known to Recipient prior to receiving such
information from an independent source not subject to confidentiality
restrictions;
8.3.3 is authorized for dissemination to others by Disclosing
Party without restriction on disclosure;
8.3.4 can be shown to be independently developed by Recipient;
or
8.3.5 Recipient is required by law, rule, regulation, court
order, or the like to disclose, provided, that, Recipient immediately notifies
the Disclosing Party of the required disclosure, cooperates if the Disclosing
Party elects to object to the required disclosure, and only produces that
information specifically required to be disclosed.
8.4 The parties acknowledge that any threatened or actual unauthorized
use or disclosure of any Confidential Information will cause the Disclosing
Party great and irreparable harm, and that money damages will be insufficient to
compensate for such unauthorized use or disclosure. Without limiting any of its
other rights or remedies, the Disclosing Party will be entitled to receive
immediate injunctive or equitable relief to prevent or terminate any
unauthorized disclosure, without the requirement to post any bond or other
security therefor.
9. Term.
9.1 Term. The term of this Agreement will commence as of the Effective
Date and will continue in full force and effect until terminated by as provided
in Section 9.2 below.
9.2 Breach and Termination
9.2.1 If not earlier terminated pursuant to Section 9.2.3
below, this Agreement will automatically terminate upon the termination or
expiration of the Access Agreement.
9.2.2 In the event of any breach of this Agreement, the
non-breaching party shall, in addition to any other remedy provided hereunder,
or available at law or in equity, be entitled to bring an action at law for
money damages, or in equity for specific performance or to seek injunctive
relief; provided, however, that, in no event shall HSAC be entitled to terminate
or rescind this Agreement or enjoin, or otherwise interfere with the provision
of the Vulcan Content to Vulcan Systems, Independent Systems, and Subscribers as
contemplated hereunder.
9.2.3 Without limiting its other remedies at law or in equity
for any breach of this Agreement by HSAC, Vulcan may, in its sole discretion,
terminate this Agreement at any time and for any reason or no reason whatsoever
upon six (6) months written notice to HSAC.
9.2.4 HSAC and Vulcan each acknowledges that the rights
granted, and services to be provided to each other hereunder are of a special,
unique, unusual, extraordinary, and intellectual character, giving them peculiar
value, the loss of which
-12-
13
cannot be reasonably or adequately compensated in damages; and that an actual or
threatened material breach by either party hereunder would cause the other party
irreparable injury and damage. Subject to Section 9.2.2 above, each party agrees
that, if it commits or is about to commit a material breach of this Agreement,
the other party will be entitled to injunctive or other equitable relief as a
remedy for any such actual or threatened material breach, without the
requirement to post any bond or other security therefor.
9.2.5 Neither party will be responsible for any delay or
failure in performance of any part of this Agreement, including without
limitation any delay or failure to provide Vulcan Content (in the case of
Vulcan) or any delay or failure to provide HSAC Services (in the case of HSAC),
to the extent that such delay or failure is caused by fire, flood, explosion,
war, lightning, embargo, government requirement, riots or civil commotion, acts
of civil or military authority, embargoes, strikes, acts of God, power surges,
acts or omissions of carriers or utilities, or other similar causes or
contingencies beyond its reasonable control.
9.3 Effect of Termination. Upon termination, all licenses granted in
Section 5.3 above will terminate, each party will return or destroy all
Confidential Information of the other party in its possession, HSAC's rights to
use, store, reproduce, and distribute Vulcan Content will terminate, and HSAC
will return to Vulcan all Vulcan Content, whether in electronic or
non-electronic form, and whether or not then in use by HSAC. If Vulcan has
supplied any Vulcan Equipment for HSAC use in providing Vulcan Content, Vulcan
may, in its sole discretion: (i) take possession of such Vulcan Equipment and
reimburse HSAC for reasonable expenses incurred in disconnecting the Vulcan
Equipment from the HSAC Network Equipment, (ii) offer the Vulcan Equipment to
HSAC at the fair market value, or (iii) if no market exists for the Vulcan
Equipment, offer the Vulcan Equipment to HSAC at a price equivalent to ten
percent (10%) over the salvage value.
10. Representations and Warranties.
10.1 HSAC. HSAC hereby represents and warrants to Vulcan as follows:
10.1.1 HSAC is a corporation duly organized, validly existing,
and in good standing under the laws of its jurisdiction of incorporation and is
duly qualified to do business as a foreign corporation in all jurisdictions in
which it conducts its business.
10.1.2 HSAC's execution, delivery, and performance of this
Agreement has been duly authorized by all requisite corporate action, and this
Agreement constitutes a legally valid and binding obligation of HSAC enforceable
in accordance with its terms, subject to laws relating to bankruptcy and
insolvency, and subject to a court's application of equitable principles.
10.1.3 HSAC's execution, delivery, and performance of this
Agreement will not violate, conflict with, or result in a breach or default
under, HSAC's certificate of incorporation, bylaws, or other charter documents,
or any judgment, award, decree, agreement, or other instrument to which HSAC is
a party.
-13-
14
10.1.4 No approval, authorization, consent, or order or filing
with any court, or governmental or administrative agency or any third party is
required in order for HSAC to enter into, deliver, and perform this Agreement
and the transactions contemplated herein.
10.1.5 HSAC either owns or has properly licensed all rights
under the HSAC IP Rights necessary or required to provide the HSAC Services and
perform the other services to be performed by HSAC hereunder, including, without
limitation, all rights under relating to any equipment (including, without
limitation, the HSAC Network Equipment), software, or Content that HSAC will use
or will provide in connection with the HSAC Services and the other services to
be performed by HSAC hereunder. HSAC's provision or operation of the HSAC
Services and the other services to be performed by HSAC hereunder and under the
Network Services Agreement or the Access Agreement will not violate or infringe
any intellectual property laws or violate or infringe any IP Rights of third
parties. Notwithstanding anything to contrary, no representation or warranty is
made, nor shall there be any liability, with respect to Content included in HSAC
Content that is Licensed from third parties.
10.2 Vulcan. Vulcan hereby represents and warrants to HSAC as follows:
10.2.1 Vulcan is a corporation duly organized, validly
existing, and in good standing under the laws of its jurisdiction of
incorporation and is duly qualified to do business as a foreign corporation in
all jurisdictions in which it conducts its business.
10.2.2 Vulcan's execution, delivery, and performance of this
Agreement and has been duly authorized by all requisite corporate action, and
this Agreement constitutes a legally valid and binding obligation enforceable in
accordance with its terms, subject to laws relating to bankruptcy and
insolvency, and subject to a court's application of equitable principles.
10.2.3 Vulcan's execution, delivery, and performance of this
Agreement will not violate, conflict with, or result in a breach or default
under Vulcan's certificate of incorporation, bylaws, or other charter documents,
or any judgment, award, decree, agreement, or other instrument to which Vulcan
is a party.
10.2.4 No approval, authorization, consent, or order or filing
with any court, or governmental or administrative agency or any third party is
required in order for Vulcan to enter into, deliver, and perform this Agreement
and the transactions contemplated herein.
10.2.5 Vulcan either owns or has properly licensed all rights
under the Vulcan IP Rights necessary or required to provide the Vulcan Content
and perform the other services to be performed by Vulcan hereunder, including,
without limitation, all rights under relating to any equipment software, or
Content that Vulcan will use or will provide in connection with the Vulcan
Content and the other services to be performed by Vulcan hereunder. Vulcan's
provision of the Vulcan Content and other services to be performed by Vulcan
hereunder and under the Network Services Agreement or the Access Agreement will
not violate or infringe any intellectual property laws or violate or infringe
any IP Rights of third parties. Notwithstanding anything to contrary, no
representation or warranty is made,
-14-
15
nor shall there be any liability, with respect to Content included in Vulcan
Content that is Licensed from third parties.
11. Indemnification.
11.1 HSAC will indemnify, defend, and hold harmless Vulcan and its
affiliates, agents, successors, assigns, representatives, officers, and
directors from and against any liabilities, lawsuits, penalties, claims,
demands, awards, judgments, settlements, costs, and expenses (including, without
limitation, reasonable attorneys' fees and expenses on account thereof) that
arise or result from: (i) the breach by HSAC of any of its representations,
warranties, or covenants hereunder, or (ii) HSAC's acts or omissions in
connection with the provision of the HSAC Services, including, without
limitation, in any such case, any liabilities, lawsuits, penalties, or claims
related to defamation, infringement, criminal activities, and fraud, except to
the extent that any such liabilities, lawsuits, penalties, claims, demands,
awards, judgments, settlements, costs or expenses that arise from the Vulcan
Content.
11.2 [Intentionally deleted].
11.3 Vulcan will indemnify, defend, and hold harmless HSAC and its
affiliates, agents, successors, assigns, representatives, officers, and
directors from and against any liabilities, lawsuits, penalties, claims,
demands, awards, judgments, settlements, costs, and expenses (including, without
limitation, reasonable attorneys' fees and expenses on account thereof) that
arise or result from: (i) the breach by Vulcan of any of its representations,
warranties, or covenants hereunder, or (ii) Vulcan's acts or omissions in
connection with the provision the Vulcan Content, including, without limitation,
in any such case, any liabilities, lawsuits, penalties, or claims related to
defamation, infringement, criminal activities, and fraud, except to the extent
that any such liabilities, lawsuits, penalties, claims, demands, awards,
judgments, settlements, costs or expenses arise from the HSAC Services.
11.4 HSAC agrees to indemnify, defend, and hold harmless Vulcan and its
affiliates, agents, successors, assigns, representatives, officers, and
directors, and Vulcan agrees to indemnify, defend, and hold harmless HSAC and
its affiliates, agents, successors, assigns, representatives, officers, and
directors, from and against any liabilities, lawsuits, penalties, claims,
demands, awards, judgments, settlements, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses on account thereof) that may
be made by any third party for injuries, including death to persons, resulting
from the indemnifying party's negligent or willful acts or omissions or those of
persons employed by the indemnifying party, its agents, or subcontractors.
Vulcan and HSAC respectively agree to notify the other party promptly of any
written claims or demands against the indemnified party for which the
indemnifying party is deemed responsible hereunder, provided, that, any failure
to provide such notification shall not affect the substantive rights of the
parties hereunder.
12. Limitation of Liability.
12.1 Limitation of Liability. EXCEPT FOR THE INDEMNIFICATION
OBLIGATIONS DETAILED IN SECTION 11 ABOVE, IN NO EVENT WILL EITHER
-15-
16
PARTY HERETO BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES (EVEN IF THAT PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES), ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT, INCLUDING
WITHOUT LIMITATION LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
13. General.
13.1 Obligations to Survive Termination. The parties recognize and
agree that their obligations under Sections 7, 8, 9, 10, 11, 12, and this
Section 13 of this Agreement will survive the cancellation, termination, or
expiration of this Agreement.
13.2 Closing. The closing of this Agreement and the transactions
contemplated herein will take place at such time and place as the parties may
agree.
13.3 Assignment. HSAC will not have the right to assign this Agreement
to any person or entity without the prior written consent of Vulcan, except it
may without Vulcan's consent assign its rights, but not its obligations, to a
subsidiary of HSAC, provided, that, no such assignment will relieve HSAC of
liability for its obligations hereunder. Vulcan may assign this Agreement to any
person or entity, and this Agreement will be binding and inure to the benefit of
its successors and assigns. Each party will be permitted to assign this
Agreement and grant a security interest in its contract rights and tangible or
intangible property interests (including the HSAC Network Equipment) arising
under this Agreement for purposes of securing financing from commercial
lender(s). However, as a condition to doing so, HSAC will be obligated to obtain
non-disturbance agreements in form and substance satisfactory to Vulcan from
each such lender under which such lender agrees that, notwithstanding such
lender's exercise of its rights as a secured creditor, such lender and its
assigns will not disturb, affect, or interfere with HSAC's provision of the HSAC
Services hereunder. All assignments in contravention of this Section 13.3 will
be null and void and of no force or effect. Either party shall provide the other
party with thirty (30) days prior written notice of any permitted assignment
hereunder.
13.4 Amendment and Waiver. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of both parties unless otherwise expressly permitted in
this Agreement, and any written waiver by either party of any breach of any term
or condition will not be deemed to be a waiver of any subsequent or other
breach, term, or condition of this Agreement.
13.5 No Joint Venture or Partnership. Nothing contained herein will be
deemed to create any relationship of partnership, associates, joint venture or
principal-agent between HSAC and Vulcan, and neither party will hold itself out
in its advertising or otherwise in any manner which would indicate such
relationship. Each party is acting as a principal hereunder and is responsible
for its own income tax consequences.
-16-
17
13.6 Section Headings. The section headings contained in this Agreement
are inserted as a matter of convenience and will not affect in any way the
construction of the terms of this Agreement.
13.7 Governing Law. This Agreement and the rights and obligations of
the parties hereunder will be governed by and interpreted in accordance with the
laws of the State of Delaware, without reference to the conflicts of laws
principles thereof.
13.8 Equal Construction. This Agreement has been negotiated and drafted
by parties equally represented by counsel, and no clause or provision herein
should be construed as having been drafted other than equally by both parties.
13.9 [Intentionally omitted].
13.10 [Intentionally omitted].
13.11 Attorney's Fees. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, each party will pay its own
fees, costs, and disbursements in connection therewith.
13.12 Year 2000 Compliance. To the best of their respective knowledge,
each party represents, warrants, and covenants that it has taken all actions
necessary and appropriate to assure that there shall be no material adverse
change to their respective business or electronic systems or material
interruptions in the operation and delivery of HSAC Services or the provision by
Vulcan of Vulcan Content as provided in this Agreement (aside from normal data
packet delays, distortions, and losses (i) on the Internet backbone, (ii) during
transport to the Internet Backbone on telecommunication lines leased from a
third party, (iii) or during transport from the customer to HSAC over a coaxial
cable or fiber optic line) by reason of the advent of the year 2000, including,
without limitation, that all their respective computer-based systems, embedded
microchips and other data processing capabilities have been designed or modified
and fully tested in such a manner that such computer-based systems, embedded
microchips and other data processing capabilities will not generate any invalid
and/or incorrect date-related results or cause any of the problems commonly
referred to as "Year 2000 problems" and will, without interruption or manual
intervention, continue to operate consistently, predictably and accurately and
in accordance with all of the requirements of this Agreement, including without
limitation, meeting all specifications and/or functionality and performance
requirements, when used during any year prior to, during or after the calendar
year 2000. Neither HSAC nor Operator warrants that interruptions in HSAC
Services or in the provision by Vulcan of Vulcan Content will not occur due to
the network or systems failures of other parties, including utilities and phone
services, caused by "Year 2000 problems."
13.13 Severability. The invalidity or unenforceability of any provision
of this Agreement will not affect the validity or enforceability of the
remaining provisions.
13.14 Counterparts. This Agreement may be executed in two or more
counterparts, any of which may be deemed an original, but all of which taken
together will constitute one and the same instrument. This Agreement may be
executed and delivered by facsimile.
-17-
18
13.15 Rights and Remedies Cumulative. The rights and remedies provided
by this Agreement and any exhibits or schedules hereto are cumulative, and the
use of any one right or remedy by any party will not preclude or waive the right
to use any or all other remedies. Such rights and remedies are given in addition
to any other rights the parties may have by law, statute, ordinance, or
otherwise.
13.16 Further Assurances. Each party hereto agrees to execute such
additional documents and schedules and take such other actions as the other
party or may reasonable request to consummate the transactions contemplated by
this Agreement and otherwise as may be necessary to effectively carry out the
terms and provisions of this Agreement.
13.17 Press Releases. Except as required by law, neither of the parties
will issue any public statements or press releases pertaining to the
transactions contemplated herein without the consent of the other party hereto.
13.18 Notices. All notices, requests, demands, and other communications
("NOTICES") required or permitted hereunder will be in writing, in English, will
refer to this Agreement, and may be delivered personally or by overnight air
courier guaranteeing next-day delivery, or sent by certified or registered mail,
return receipt requested, or by facsimile to such party at its address set forth
below (or such other address as may be designated by notice given in accordance
with this Section). The date of personal delivery or facsimile, the next day if
by express delivery, or the date five (5) days after certified or registered
mailing will be deemed the date on which such Notice is effective. Notices will
be sent to each party at the following addresses:
If to HSAC:
High Speed Access Corp.
0000 Xxxx Xxxxxx Xxx., Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Fax: 000-0000-0000
Attention: Xxxx Xxxxxxx, Esq.
General Counsel
with a copy to:
Xxxxx Xxxxxxx & Xxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
-18-
19
If to Vulcan:
Vulcan Ventures, Incorporated
000 000xx Xxxxxx XX
Xxxxxxxx, Xxxxxxxxxx 00000
Fax: 000-000-0000
Attention: Xxxxxxx X. Xxxxx
with a copy to:
Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xx Xxxxx, Esq.
and to:
Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
Attention: Xxxxxx Xxxx and Xxxx Xxxx
13.19 Entire Agreement; Modifications. This Agreement and the schedules
and exhibits hereto set forth the entire agreement between the parties hereto
and any parties who have in the past or who are now representing either of the
parties hereto. This Agreement supersedes all prior oral or written
understandings and communications between the parties, and no other oral or
written representations will apply.
This Agreement is hereby agreed to and accepted as of the Effective
Date.
VULCAN VENTURES, INCORPORATED.
By: /s/ Xxxxxxx X. Xxxxx
_______________________________
Title: Vice President
_______________________________
HIGH SPEED ACCESS CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
_______________________________
Title: Vice Chairman
_______________________________
-19-
20
SCHEDULE A
CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
21
SCHEDULE B
QUALITY CONTROLS AND RESTRICTIONS ON USE OF MARKS
OWNERSHIP
HSAC agrees and expressly acknowledges that nothing herein will give it
any right, title, or interest in the Vulcan Marks (except the right to use as a
licensee in accordance with the terms of this Agreement), that the Vulcan Marks
are the sole property of the Vulcan and its Affiliates and that any and all use
of the Vulcan Marks by HSAC inures to the benefit of the Vulcan and its
Affiliates.
Vulcan agrees and expressly acknowledges that nothing herein will give
it any right, title, or interest in the HSAC Marks (except the right to use as a
licensee in accordance with the terms of this Agreement), that the HSAC Marks
are the sole property of HSAC, and that any and all use of the HSAC Marks by
Vulcan inures to the benefit of HSAC.
Each party agrees not to raise or cause to be raised any questions,
claims or objections concerning the validity of the other party's title to its
Marks on any grounds whatsoever. Each party agrees it will do nothing
inconsistent with the ownership of the Marks by the other party, and agrees to
notify the other party of any unauthorized or inappropriate uses of the Marks of
which it becomes aware. Each party will provide reasonable assistance (at the
other party's expense) in any defense against challenges to the other party's
Marks, if requested to do so by the other party.
If a party is required to register the Marks of the other party under
any statute for registration of fictitious business names or any other type of
registration, that party will notify the other party before registration, and
will only register in a form approved by the other party. Upon termination of
this Agreement, each party will immediately take all necessary steps to
eliminate any such registrations.
SUBLICENSES
Neither party will sublicense its right to use the Marks of the other
party under this Agreement without the prior written consent of that other
party, which may be withheld for any reason.
RESTRICTIONS ON USE
All uses of a party's Marks by the other party will be made together
with the appropriate ["(TM)"] ["(R)"] symbol in connection with the Marks.
All uses of the Marks by a party will include a legend indicating that
each Xxxx is owned by its respective owner.
Neither party will use any xxxx or device identical with or confusingly
similar to the licensed Marks of the other party in connection with any product
or service, except as permitted by this Agreement.
22
QUALITY CONTROL
Each party agrees to use the Marks of the other party only in
connection with the lawful goods or services specified herein, and agrees that
such goods or services will be of a standard of quality at least as high as that
of similar goods or services produced by the other party. Each party alone will
judge, in its reasonable discretion, whether or not the other party has met or
is meeting the standards of quality so established.
If at any time a party's products, packaging therefor, or services
associated with the Marks of the other party do not meet the quality standard
set forth herein, as reasonably determined by the other party, then that other
party will have the right to require discontinuation of the use of its Marks in
connection with the sale of such products or services, unless modifications
satisfactory to that party are made within ninety (90) days from notice of
disapproval.
Each party will comply with all applicable laws and regulations and
obtain all appropriate governmental approvals pertaining to the sale,
distribution, and advertising of goods or services covered by this license.
COSTS OF USING VULCAN MARKS
HSAC will bear any and all costs associated with the use, printing, and
placing of the Vulcan Marks in materials prepared by HSAC in connection with
which HSAC has sought or is obliged to seek approval from Vulcan for the use of
the Vulcan Marks, and Vulcan will bear any and all costs associated with the
use, printing, and placing of the HSAC Marks in materials prepared by Vulcan in
connection with which Vulcan has sought or is obliged to seek approval from HSAC
for the use of the HSAC Marks.
-24-
