Exhibit 10.3
[NOTE: CERTAIN PORTIONS OF THIS DOCUMENT HAVE BEEN MARKED TO INDICATE THAT
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THIS CONFIDENTIAL INFORMATION.
THESE PORTIONS HAVE BEEN MARKED WITH THE CLAUSE "CONFIDENTIAL TREATMENT
REQUESTED" AND/OR TWO ASTERISKS ENCLOSED IN BRACKETS (i.e., [**]). THE
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.]
PRINCETON VIDEO IMAGE, INC.
AMENDED AND RESTATED L-VIS(R) SYSTEM LICENSE AGREEMENT
This Amended and Restated L-VIS(R) System License Agreement (the "Restated
License Agreement") is made this 25th day of June 2002 by and between Princeton
Video Image, Inc. ("PVI") and Cablevision Systems Corporation ("Cablevision")
and supersedes the L-VIS System License Agreement between PVI and Cablevision
dated February 4, 2001.
1. DEFINITIONS.
In addition to the terms defined elsewhere in this Restated License
Agreement, the following terms shall have the following meanings:
1.1 "Additional Units" has the meaning assigned to such term in Section
2.8(b).
1.2 "Advertiser" means any Third Party for which an insertion of an
Electronic Image is made by Licensees for consideration in any form; provided,
however, such shall not be deemed to include cable television subscribers solely
by virtue of their payment of cable subscription fees.
1.3 "Affiliate" with respect to any person or Company, shall mean any
person or Company controlled by such first person or Company. For these
purposes, "control" shall refer to (a) the possession, directly or indirectly,
of the power to direct the management, policies or television operations of a
person or Company, whether through the ownership of voting securities, by
contract or otherwise, or (b) the ownership, directly or indirectly, of at least
50% of the voting securities or other ownership interest of a Company. For
purposes of this Restated License Agreement, National Sports Partners (or its
affiliate which operates the national "Fox Sports Net") shall be considered to
be an Affiliate of Cablevision.
1.4 "Company" means any form of organization, entity or business, whether
or not conducted for profit.
1.5 "Documentation" means all operator and user manuals, training
materials, guides, specifications and other materials created or owned by PVI
and provided to licensees generally to use and operate the L-VIS(R) System.
1.6 "Editing Agent" means any individual or Company that is responsible
for actual, physical manipulation of the L-VIS(R) System in order to make
insertions of Electronic Images.
1.7 "Electronic Image" means an image that is electronically inserted into
Telecasts through use of the L-VIS(R) System.
1.8 "Enhancements" has the meaning assigned to such term under Section 3.4
(a).
1.9 "Equipment" means the computer hardware and other equipment included
in the L-VIS(R) System, as identified on all Schedules B as may be executed by
the parties from time to time pursuant to Section 2.8 of this Restated License
Agreement.
1.10 "Equipment Fee" means PVI's direct cost for the Equipment (as
reasonably determined by PVI) from time to time, unless otherwise mutually
agreed upon in writing by the parties.
1.11 "General Improvements" means all material revisions, updates,
upgrades and other modifications to the Software included in the L-VIS(R) System
from time to time, and the Equipment embodying and Documentation with respect to
same, that PVI generally makes available to licensees without charge (other than
reimbursement of PVI's reasonable expenses and/or charges for the Equipment).
1.12 "Initial Unit" means the L-VIS(R) System including the Equipment
purchased by Licensees pursuant to this Restated License Agreement and currently
located at Rainbow Network Communications Systems, an Affiliate of Cablevision,
located in Bethpage, New York.
1.13 "Licensed Affiliates" means any present and future Affiliate of
Cablevision so long as it remains an Affiliate of Cablevision and agrees in
writing to be bound by the terms and conditions of this Restated License
Agreement.
1.14 "Licensees" means Cablevision and its Licensed Affiliates.
1.15 "Licensed Network" means a then current television network Affiliate
of Cablevision. Current examples include Bravo Network, American Movie Classics,
and MSG Network.
1.16 "Licensed Telecast" means the Telecast of any event or content other
than (i) Telecasts, intended for exclusive or primary distribution within a
specified territory outside the Territory as to which PVI has entered or enters
into an exclusive license, of events that originate within such specified
territory without the consent of the holder of such exclusive license or (ii)
Telecasts of content with respect to which Cablevision or a Licensed Affiliate
is not the primary rights holder, which is both (a) to be disseminated on a
Network not owned or controlled by Cablevision or a Licensed Affiliate and (b)
distributed by a System Operator other than Cablevision or a Licensed Affiliate.
1.17 "L-VIS(R) System" means the Equipment, the Software, the
Documentation and the General Improvements, modifications or improvements
therein or derivatives thereof which, collectively allow real-time or
post-production electronic insertion of Electronic Images into Telecasts in
which video is inserted and executed "upstream", prior to distribution of the
program to individual, or groups of, viewers. For the avoidance of doubt,
Schedule A describes certain technology and functionality which is included as
part of the L-VIS(R) System and certain other technology and functionality
which is specifically excluded from the meaning of the L-VIS(R) System.
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1.18 "Network" shall mean a broadcast channel for the dissemination of
video programming content through a television system, cable system, satellite
system or other such similar broadcasting system.
1.19 "Revenues" means all of the consideration that Licensees receive,
from Advertisers attributable to the use of the Units licensed to Licensees
hereunder, including without limitation advertising fees, premiums, user
charges, fees, and up-front payments (to the extent non-refundable). If the
exploitation of the Units licensed to Licensees hereunder is sold in combination
with other goods or services, Licensees shall, in good faith, reasonably
allocate the appropriate portion of such consideration as Revenue.
1.20 "Revenue Sharing Rate" means
[CONFIDENTIAL TREATMENT REQUESTED]
1.21 "Software" means the computer software, in object code form, included
in the L-VIS(R) System as of the date of the shipment of a Unit, and all General
Improvements made subsequent to the date of this Restated License Agreement, if
any.
1.22 "System Operator" shall mean an entity providing a system for
distributing Networks to end users, such as the Cablevision cable distribution
system.
1.23 "Telecast" means the dissemination of audio-visual content via
television transmission (whether broadcast, narrow-cast, cable, satellite,
closed circuit or otherwise) and, only for purposes of this Restated License
Agreement, the term shall specifically include distribution of audio-visual
content primarily through movie theaters. All other means of transmitting
content (including, without limitation, primarily through the Internet or any
similar or successor means) shall be expressly excluded from the definition of
Telecast and the scope of Licensee's license hereunder.
1.24 "Term" means the term of this Restated License Agreement, which shall
commence on the date first written above.
1.25 "Territory" means the United States of America, its territories and
possessions, and Canada.
1.26 "Third Party" means any person or Company who or which is neither a
party nor an Affiliate of a party.
1.27 "Trademarks" means all trademarks or trade names that PVI uses, from
time to time, with respect to the L-VIS(R) System.
1.28 "Unit" means one complete L-VIS(R) System. "Units" means the Initial
Unit and the Additional Units (as defined herein), if any, collectively.
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2. LICENSE, LEASE AND PURCHASE RIGHTS.
2.1 Grant of L-VIS(R) System License. Subject to the terms and conditions
set forth in this Restated License Agreement (including, without limitation,
Section 2.2), PVI hereby grants to Cablevision and its Licensed Affiliates a
non-exclusive, non-transferable license to use the L-VIS(R) System, including,
without limitation, the Software, Equipment, Documentation and General
Improvements and any technology or know-how that is owned or controlled by PVI
and is necessary or useful for the exploitation thereof, solely for combined use
as an L-VIS(R) System and in connection with the Telecast of Licensed Telecasts
during the Term. Licensees shall use the L-VIS(R) System for their own use or
for the use of other Licensees. Licensees shall not use the L-VIS(R) System to
provide services to non-Licensees.
2.2 Reservation of Rights.
(a) All rights and licenses not expressly granted in Sections 2.1
and 2.14 are hereby expressly reserved by PVI.
(b) Further, notwithstanding the non-exclusive license granted to
Licensees in Section 2.1, Licensees acknowledge and agree that: (i) PVI has
specifically reserved the right to use the Software, Equipment (exclusive of any
Equipment purchased by Cablevision or its Licensees under Section 2.8 hereof)
and the Trademarks in conjunction with its and/or Third Parties' use of the
L-VIS(R) System in connection with the Telecast within the Territory of content
or events, whether or not Licensed Telecasts, without any obligation to
compensate Licensees in connection with such use; and (ii) Licensees shall have
no right to use the L-VIS(R) System in connection with the Telecast of content
or events that are not Licensed Telecasts unless PVI or a Third Party licensee
of PVI expressly grants Licensees such right.
2.3 Restrictions on Use. In addition to other restrictions and limitations
which may be imposed by this Restated License Agreement:
(a) Unless otherwise provided herein, Licensees shall not: (i) make
or distribute to others copies of the Software or the Documentation aside from
back-up copies of the Software; (ii) modify, adapt, merge, translate, decode,
reverse engineer, decompile, disassemble or create derivative works based upon
the Software, the Documentation, the Equipment, any General Improvement or any
other part of the L-VIS(R) System; (iii) use the L-VIS(R) System or any part
thereof in the construction, development, maintenance, running or execution of
any application other than the Software; or (iv) market the Software, the
Equipment, any General Improvement or the L-VIS(R) System, or any part thereof,
other than in connection with the insertion of Electronic Images into Licensed
Telecasts, in accordance with the terms and conditions of this Restated License
Agreement.
(b) Unless agreed to by PVI in advance, in writing, or otherwise
permitted in accordance with the other terms of this Restated License Agreement,
Licensees shall not: (i) sublicense, lease, sell, assign, rent or otherwise
transfer to others, or otherwise dispose of, the Software, the Documentation,
the Equipment, any General Improvement or any other part of the L-VIS(R) System;
(ii) use the L-VIS(R) System for any purpose other than in connection with the
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Licensed Telecasts within the Territory; or (iii) transfer, assign, relicense or
otherwise dispose of its rights under this Restated License Agreement.
2.4 Compliance with Standards.
(a) Licensees shall use, and shall cause any Editing Agent to use,
the L-VIS(R) System only in accordance with PVI's reasonable and customary
continuity standards, as may be in effect from time to time during the Term.
(b) Licensees acknowledge that any use of the L-VIS(R) System in
violation of applicable laws or regulations and commonly recognized
governmental, community or industry standards would cause severe and irreparable
injury to PVI's reputation and legitimate business interests. Notwithstanding
anything contained in this Restated License Agreement to the contrary, and in
addition to Licensee's obligations under 2.4(a), Licensees shall not knowingly
use, and it shall not allow any Editing Agent to knowingly use, the L-VIS(R)
System in any manner inconsistent with any applicable laws or regulations and
any commonly recognized governmental, community or industry standards, or in a
manner that has not been approved by the rightsholders, sponsors, advertisers
and broadcasters of the Licensed Telecast in question.
(c) During the Term, Licensees shall maintain, at their sole cost
and expense, advertising injury insurance (or its equivalent in the Territory)
with such coverage and such limits as are customarily maintained by television
advertisers in the Territory.
2.5 Obligations of Licensees.
(a) Licensees and/or their respective designee(s) shall be solely
responsible for selling the available Electronic Image capacity for Licensed
Telecasts. Licensees and PVI will cooperate and coordinate, from time to time,
as the parties deem reasonably appropriate to develop and implement Licensee's
commercialization plan.
(b) Licensees and/or their respective designee(s) shall be
responsible for obtaining and maintaining any governmental authorizations
(including, without limitation, any equipment export or import licenses), and
for negotiating any arrangements with Telecast rightsholders, necessary to
enable Licensees to use the L-VIS(R) System as contemplated in this Restated
License Agreement, including, without limitation, obtaining any and all required
rights and permissions (all such authorizations, arrangements, rights and
permissions, collectively, "Required Permissions").
(c) It is understood that Licensees may have arrangements with one
or more Editing Agents for Licensed Telecasts. The license rights granted by PVI
to Licensees to use the L-VIS(R) System shall be extended to such Editing Agents
solely for their use in connection with Licensed Telecasts and the provisions of
Sections 2.3, 2.4, 2.6, 2.12, 2.14(b), 3.7, 3.8, 4.2, 4.4 and 5 shall apply to
such Editing Agent. Each Licensee shall be responsible for compliance by its
Editing Agents with such terms.
(d) Subject to the other terms of this Restated License Agreement,
Licensees shall maintain complete editorial control over the use of the L-VIS(R)
System in connection with
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Licensed Telecasts, including the right to determine the location, content and
appearance of the Electronic Images.
2.6 Inspection Right. PVI shall have the right to inspect, at its own
expense and at reasonable times and following reasonable notice, all sites where
the L-VIS(R) System is being used pursuant to this Restated License Agreement,
in order to verify that such use complies in all respects with the requirements
under this Restated License Agreement.
2.7 Good Faith Incidental Telecasts. The parties acknowledge that
Telecasts and related distribution of content cannot be made to conform exactly
to geographic boundaries or distribution methods. As a result, a Licensee's good
faith use of the L-VIS(R) System pursuant to the license granted in Section 2.1
may result in the Telecast of Electronic Images in geographic areas not
permitted under the definition of Licensed Telecasts. No such good faith,
incidental Telecast by a Licensee shall constitute a breach of any obligation of
the Licensee or Licensees under this Restated License Agreement, and the
Licensees shall not be required to make any payment to or otherwise separately
compensate PVI or any Third Party on account thereof.
2.8 Lease or Purchase of Units; Additional Units.
(a) Subject to the terms and conditions set forth in this Restated
License Agreement Cablevision has purchased the Equipment which embodies the
Initial Unit solely for use in conjunction with Licensees' use of the L-VIS(R)
System and solely in connection with Licensed Telecasts or as otherwise
permitted under the terms of the Amended and Restated Joint Collaboration and
License Agreement (the "Restated Collaboration Agreement") and/or the iPoint(TM)
Technology License Agreement (the "iPoint Agreement") entered into by the
parties on the date hereof (as same may be amended from time to time). The
Equipment forming a part of the Initial Unit is currently located at Rainbow
Network Communications Systems, an Affiliate of Cablevision, located in
Bethpage, New York. PVI has agreed to promptly replace the Initial Unit with a
new Initial Unit ( the "New Initial Unit") meeting the specifications provided
in the attached Schedule B at no additional cost to Cablevision or its
Affiliates. PVI shall promptly replace the Initial Unit with the New Initial
Unit and shall be responsible for all delivery, installation and other related
costs for such replacement.
(b) During the Term and so long as Licensees are not in material
default under any of the terms or conditions of this Restated License Agreement,
Cablevision or such Licensee as it shall designate, shall have the option,
subject to approval of PVI, which approval shall not be unreasonably withheld or
delayed, to either purchase or lease additional Units. PVI shall exercise
reasonable commercial efforts to provide Licensees with the number of additional
Units (such additional Units, the "Additional Units") that Licensees request.
Delivery of Additional Units shall be made in accordance with Section 2.9. Each
such Additional Unit shall be identified by serial number in a Schedule B to be
executed by the parties, from time to time, for all Additional Units to be
delivered to Licensees pursuant to this Section 2.8(b). Cablevision has
purchased from PVI the first such Additional Unit (described in Schedule B
attached hereto) and PVI shall promptly deliver and install it, at no additional
cost to Cablevision or its Affiliates, to Madison Square Garden, an Affiliate of
Cablevision, located in New York City. PVI shall be responsible for all
delivery, installation and other related costs for such Additional Unit.
6
(c) For each Additional Unit that is purchased by Cablevision, or
such Licensee as Cablevision shall designate, Cablevision will pay the
designated Equipment Fee pursuant to Section 3.2 hereof. For any Additional Unit
that Cablevision elects to purchase, the Equipment Fee may be paid in a single
lump sum or installment payments as mutually agreed upon by the parties. Any
Equipment Fee shall be charged against the Initiation Fee paid under Section 3.1
to the extent unused Initiation Fee remains available.
(d) Upon full payment or crediting of the entire Equipment Fee for
any Unit purchased hereunder, Cablevision or a designated Licensee shall
acquire: (i) all right, title and interest in and to the Equipment forming a
part of such purchased Unit; and (ii) so long as Cablevision and its Licensed
Affiliates are not in default of any payment obligations under Sections 3.3
(Revenue Sharing) or 3.4 (Enhancement Fees) or other material obligations of
this Restated License Agreement, a license to use the L-VIS(R) System embodied
in such purchased Unit, subject to the use restrictions set forth herein, which
restrictions shall apply until the expiration of any valid PVI patents covering
the Equipment or its use; provided, however, that such use restrictions shall
not apply to the extent any Units are used in connection with the iPoint
Agreement or the Project or any Additional Projects as defined and set forth in
the Restated Collaboration Agreement. PVI agrees to execute any documents and to
take any other such steps as reasonably shall be necessary to effect such
transfer of right, title and interest to Cablevision or a designated Licensee.
(e) PVI acknowledges and agrees that it is currently in the process
of developing a new platform for the L-VIS(R) System (currently referred to by
PVI as "XXXX"). If and when such new platform is ready for commercial
deployment, Cablevision shall have the right, but not the obligation, to
purchase units based on such a new platform and, if it chooses, to return to PVI
the New Initial Unit and/or the first Additional Unit for a full credit ([**]
and [**], respectively) against the purchase price for any new units (such
trade-in right shall only be exercisable one time with respect to the New
Initial Unit and the Additional Unit).
2.9 Delivery of Unit(s); Risk of Loss; Casualty Insurance.
(a) PVI shall use commercially reasonable efforts to deliver the
Initial Unit as soon as practicable after the date of this Restated License
Agreement. In connection with the delivery of any Additional Units, PVI shall
provide Licensees with written notice of a firm delivery date at least 30 days
prior to such delivery. PVI shall ship the Initial Unit and any Additional
Unit(s), F.O.B. PVI's facility, Lawrenceville, New Jersey, USA, to the
appropriate Licensee at the delivery location designated therefor on the
applicable Schedule B. The Licensee shall be responsible for all freight
expenses and any and all import duty or tax assessed by the delivery location
country relating to such shipment. PVI shall be responsible for delivery, set-up
and testing the Equipment on-site.
(b) Upon delivery of the Initial Unit or the Additional Unit(s), as
the case may be, to a Licensee, the Licensee shall assume all risks of loss,
theft, destruction of and damage to the Unit(s) so delivered unless the loss or
damage arises from the actions of PVI employees or contractors.
7
2.10 Training.
(a) PVI shall provide training in the use and operation of the
L-VIS(R) System to members of Licensee's technical staff or Editing Agents, as
Licensees may reasonably request from time to time, to enable such individuals
to use and operate the L-VIS(R) System properly. The dates and locations for
such training shall be as mutually agreed upon by the parties. Licensees shall
pay PVI for PVI's direct costs (as reasonably determined by PVI) to provide such
training, including labor costs, travel, meal and lodging expenses of any PVI
personnel in connection with providing such training.
(b) In addition, for a period not to exceed 30 days after each
delivery of a Unit as reasonably requested by a Licensee, PVI shall make one of
its representatives available to such Licensee at a single location to provide
technical assistance in connection with the installation and operation of such
Unit, should such Licensee so request. PVI shall provide such assistance at no
additional cost to such Licensee, except that such Licensee shall be responsible
for all expenses incurred by the PVI representative for travel, meals and
lodging in connection with providing such assistance.
2.11 Maintenance Support.
(a) Each Licensee shall maintain the Unit(s) it receives in good
operating condition, at its sole expense. PVI shall make its technical personnel
available during PVI's normal business hours for telephone consultations with
Licensees' technical staff at no charge. In the event that on-site technical
support is required by a Licensee during the Term, PVI shall provide such
support at PVI's direct costs (as reasonably determined by PVI) for such
services, including expenses of PVI's personnel for travel, meals and lodging
incurred in connection with providing such services.
(b) At a Licensee's request, PVI shall use reasonable commercial
efforts to make its technical personnel available to such Licensee, at no charge
to such Licensee, during non-business hours for emergency telephone
consultations during the Telecast of a specific event.
(c) At a Licensee's request, PVI will provide its technical
personnel to render services necessary to move or operate Unit(s) for a
Licensee's benefit. Such services shall be provided at PVI's direct costs for
such services (as reasonably determined by PVI); provided, however, that if PVI
provides Enhancements it shall be compensated for such services as provided
under Section 3.4.
(d) Notwithstanding any provision contained in this Restated License
Agreement to the contrary, after the initial Term, PVI shall only be obligated
to provide maintenance, training and support services under this Restated
License Agreement if it then provides support for L-VIS(R) Systems for
customers and licensees generally.
2.12 Ownership.
8
(a) Licensees acknowledge and agree that PVI owns the L-VIS(R)
System, including all Software, Equipment (exclusive of any Equipment included
in a Unit purchased hereunder), Documentation and any General Improvements, and
all copies thereof, all updates and modifications thereto made by or on behalf
of PVI, and all right, title and interest in and to all patents, patent rights,
copyrights, Trademarks, service marks, trade secrets and confidential or
proprietary information relating thereto. Except as specifically set forth in
Sections 2.1 and 2.8(d) of this Restated License Agreement, Licensees
acknowledge that, by virtue of this Restated License Agreement, Licensees do not
have, and will not obtain, any right, title or other proprietary interest in or
to any of the foregoing, except as may be provided under the Restated
Collaboration Agreement, the iPoint Agreement or other amendments and agreements
agreed upon in writing by the parties.
(b) If PVI supplies Licensees with reasonable labels, plates or
other markings stating that the leased Equipment is owned by PVI, Licensees
shall affix and keep affixed the same in a prominent place on the leased
Equipment. PVI shall have the right, at all reasonable times and following
reasonable notice, to inspect the Units and observe Licensee's use of the
L-VIS(R) System. Licensees grant PVI the right to execute and file such
statements or instruments, and take such other actions, to provide public notice
of, and protect PVI's interest in, the leased Equipment, including without
limitation against the rights of landlords.
(c) The leased Equipment is, and shall at all times be and remain,
personal property notwithstanding that the leased Equipment or any part thereof
may now be, or hereafter become, in any manner affixed or attached to real
property or any improvements thereon.
2.13 Improvements.
(a) From time to time as reasonably requested by Licensees, PVI
shall deliver to Licensees, and provide Licensees' technical staff with any
necessary training concerning, any General Improvements that exist during the
Term. Licensees acknowledge and agree that PVI shall not be obligated to create
any General Improvements. PVI shall provide General Improvements to Licensees
without charge, except that Licensees shall reimburse PVI for its direct costs
in connection with providing such General Improvements, and with the purchase,
shipment, insurance, etc. of any Equipment embodying such General Improvements,
promptly after PVI's presentation of an invoice for such expenses provided, that
Licensees shall have, pursuant to this Restated License Agreement, a license to
any improvements to the extent such improvements relate to the functionality of
the L-VIS(R) System (as described in Schedule A).
(b) The parties shall execute additional Schedules B, if necessary,
to reflect any Equipment delivered to Licensees pursuant to this Section 2.13.
(c) In the event PVI develops any non-exclusive special improvements
for the L-VIS(R) System that are not General Improvements, PVI will offer
Licensees the opportunity to obtain a separate license for such special
improvements on terms no less favorable than those offered to any third party
(provided that Licensees are considered under this Restated License Agreement
hereby to be licensed to such improvements to the extent they improve on the
existing functionality of the L-VIS(R) System).
9
2.14 Grant of Trademark License.
(a) Subject to the terms and conditions set forth in this Restated
License Agreement (including, without limitation, Section 2.2), PVI hereby
grants to Licensees a non-exclusive, non-transferable license to use the
Trademarks in connection with Licensees' exploitation of the L-VIS(R) System
under the license granted in Section 2.1.
(b) Licensees shall use the Trademarks only in such form and manner
as shall be approved from time to time by PVI, including without limitation the
identification of PVI as the owner of such Trademarks, and in accordance with
all applicable laws and regulations in the Territory. Licensees shall not use
the Trademarks in any manner that may jeopardize the significance,
distinctiveness or validity thereof. All of Licensees' uses of the Trademark
shall inure to the benefit of PVI. Licensees shall not use the Trademarks in
combination with any other trademark, trade name or logo of its own or of any
Third Party to create a composite trademark or logo, without the prior written
consent of PVI. If any Licensee becomes aware of any infringement of the rights
of PVI in the Trademarks in the Territory, such Licensee will promptly notify
PVI in writing and will join and assist PVI at PVI's sole cost and expense, if
such assistance is required, in taking steps as PVI may reasonably request for
the protection of PVI's rights.
(c) PVI makes no warranty with regard to the validity of the
Trademarks or the registration thereof.
3. INITIATION FEE; EQUIPMENT FEE; ROYALTIES; ENHANCEMENT FEES; PAYMENT.
3.1 Initiation Fee. In partial consideration of the licenses and rights
granted by PVI to Licensees under this Restated License Agreement, Cablevision
has prepaid an initiation fee of US $7,500,000 ("Initiation Fee") of which
$3,500,000 has been credited as a prepaid license fee under the iPoint Agreement
and [CONFIDENTIAL TREATMENT REQUESTED] has been credited as an Equipment Fee.
The Initiation Fee shall be creditable against the payment of any future
royalty, revenue sharing obligation, enhancement fee, equipment fee or other
monetary obligation of any Licensees to PVI under this Restated License
Agreement or any other agreement between the parties as they may so provide
therein.
3.2 Equipment Fee. With respect to each Additional Unit purchased pursuant
to Section 2.8 (other than the first Additional Unit to be delivered to Madison
Square Garden), Licensees shall pay PVI an Equipment Fee in one or more
installments as mutually agreed upon by the parties. Such Equipment Fee shall be
identified to Cablevision upon any request by Cablevision for the purchase of
any Additional Unit. The parties acknowledge that the aggregate Equipment Fee
(including installation) for both the Initial Unit and the first Additional Unit
identified in Section 2.8 was [CONFIDENTIAL TREATMENT REQUESTED], which has been
credited in full against the Initiation Fee (as per Section 3.1 above). Upon
delivery, Licensees shall pay PVI a nonrefundable Equipment Fee with respect to
each Additional Unit leased to Licensees in one or more installments as mutually
agreed upon by the parties.
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3.3 Revenue Sharing; Minimum Revenue Sharing.
(a) In partial consideration of the licenses and rights granted by
PVI to Licensees pursuant to this Restated License Agreement, each Licensee
shall pay to PVI a royalty consisting of a portion of all such Licensee's
Revenues in an amount equal to the greater of (i) Revenues multiplied by the
Revenue Sharing Rate, or (ii) all payments made by Advertisers in connection
with the insertion of Electronic Images through use of a Unit licensed to such
Licensee hereunder (regardless of how such payments are characterized)
multiplied by the Revenue Sharing Rate.
(b) Without the prior written consent of PVI, Licensees shall not
accept or solicit any non-monetary consideration directly in connection with the
use of the L-VIS(R) System other than as would be reflected in Revenues, except
for commercially reasonable use for demonstrations to potential Advertisers or
as otherwise permitted by Section 3.4.
3.4 Non-Revenue Use; Enhancement Fees.
(a) In addition to Revenue Sharing Payments, Licensees shall pay PVI
a fee in connection with any insertion of Electronic Images in Licensed
Telecasts for which Licensees do not receive Revenue (e.g. non-sponsored virtual
first down lines, speed of pitch displays, etc. viewer enhancements)
("Enhancements"). If PVI provides services to provide insertion of any such
Enhancement, Licensees shall pay PVI a fee equal to [**] of PVI's direct costs
(as reasonably determined by PVI) to provide such Enhancement to Licensees
(provided that such rate shall be reduced to [**] for the first 6 months after
first use of any Enhancement by any Licensee). If Licensees insert an
Enhancement without use of PVI's services, Licensees shall pay PVI a fee equal
to [**] of PVI's reasonable estimated cost to have provided services to insert
such Enhancement (provided that such fee shall be waived for the first 6 months
after first use of any Enhancement by any Licensee). For purposes of this
provision, PVI's costs may include allocable amortization costs of equipment not
already leased to Licensees hereunder which is used by PVI directly in
connection with providing the Enhancement to Licensees and all direct out of
pocket costs associated with such insertion, including labor, as reasonably
determined by PVI, from time to time. If Enhancements are provided by PVI,
Licensees shall make payment of Enhancement Fees within 30 days of invoice by
PVI. If Enhancements are provided by Licensees, Licensees shall make payment of
applicable fees as provided in Section 3.5.
(b) Notwithstanding the provisions of Sections 3.3(b) and 3.4(a) or
any other provision hereof to the contrary, Licensees shall pay PVI, (i) with
respect to its use of the L-VIS(R) System to promote or advertise the businesses
or programming of Cablevision or the Licensed Affiliates, only a fee in the
amount equal to PVI's direct costs related to such use (as reasonably determined
by PVI); and (ii) with respect to any use of L-VIS(R) System solely in
connection with the use of iPoint(TM) Technology (as defined in the iPoint
Agreement), no Revenue Sharing Payments or other fees.
3.5 Payments. Except as provided in Section 3.3(b), all revenue sharing
payments and Enhancement fees due under this Restated License Agreement shall be
paid quarterly, within 30 days after the end of each calendar quarter. Each such
payment shall be accompanied by a
11
statement showing, for the subject calendar quarter, the sales of Electronic
Images, the amount of Revenues generated by such sales, use of Enhancements,
permitted no-charge promotional use, and the amount of revenue sharing payments
due on Revenues and fees due on Enhancements.
3.6 Mode of Payment. Except as otherwise provided herein or subsequently
agreed to by the parties, Licensees shall make all payments required under this
Restated License Agreement by crediting such amounts against the Initiation Fee
paid pursuant to Section 3.1, and to the extent unused Initiation Fee is
insufficient by payment in cash or cash equivalents denominated in United States
Dollars.
3.7 Records Retention. During each year of the Term, and for a period of
24 months after each such year, Licensees shall keep complete and accurate
records pertaining to Revenues and to permit PVI to confirm compliance with the
terms of this Restated License Agreement and the accuracy of payment
calculations hereunder.
3.8 Audit Request. During each year of the Term and for a period of 24
months after each such year, at the reasonable request of PVI, Licensees shall
permit PVI or a reputable, independent, certified public accountant or firm
appointed by PVI, to examine such records as may be necessary to confirm the
correctness of any payment due or made to PVI by Licensees hereunder or
Licensees' compliance with the Terms of this Restated License Agreement.
3.9 Cost of Audit. PVI shall bear any and all expenses associated with the
conduct of the performance of any audit contemplated by Section 3.8; provided,
however, that should any such audit disclose a ten percent or greater aggregate
underpayment by Licensees to PVI for the audit period in question, or material
non-compliance by Licensees with the terms of this Restated License Agreement,
Licensees shall reimburse PVI for all such audit expenses.
3.10 [CONFIDENTIAL TREATMENT REQUESTED]
3.11 Refund of Initiation Fee. In the event that the Initiation Fee (less
the amounts credited against it in connection with Cablevision's purchase of (i)
the Initial and first Additional Unit hereunder, and (ii) the License (as
defined in the iPoint Agreement)) is not utilized in at least (on a cumulative
basis) the following amounts by each of the following dates, PVI shall be
obligated to refund the unused portion of such amount of the Initiation Fee to
Cablevision immediately after such date:
$1,000,000 by June 30, 2004;
$2,500,000 by June 30, 2005; and
[**] by January 1, 2006.
3.12 iPoint Agreement. Notwithstanding any other provisions to the
contrary in this Restated License Agreement, Licensee shall not be required to
pay any royalties or make any other payments under this Restated License
Agreement for any use of the L-VIS(R) System solely pursuant to the L-VIS(R)
licenses granted under the iPoint Agreement.
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4. LIMITED WARRANTY; INTELLECTUAL PROPERTY; DISCLAIMERS; EXCLUSIONS.
4.1 Limited Warranty.
(a) PVI represents and warrants that it owns all of the patent
rights, copyrights and trade secrets, or has the right to grant licenses
therefor, which comprise the L-VIS(R) System, and which are necessary to grant
the licenses for the L-VIS(R) System as provided in this Restated License
Agreement.
(b) PVI warrants that the Units will, during the Term, be free from
defects and operate substantially in accordance with the Documentation, when
operated as a unit with the intended software on the intended hardware and
operating system environment. PVI does not warrant, however, that operation of
the Units shall be uninterrupted or error free. This warranty shall not apply if
errors or problems result from Licensees' negligence or improper use of the
Units. Licensees shall notify PVI in writing of its claim for any such failure
to conform. If any Unit, or any part thereof, fails to perform in accordance
with this warranty, Licensees' exclusive remedy, and PVI's sole obligation under
this warranty, shall be limited to the correction or replacement, as soon as
practicable, of such Unit or part thereof which is cause of the error. If PVI is
unable, after expenditure of reasonable commercial efforts, to replace the
defective part or correct program errors in the L-VIS(R) System, Licensees may
elect to continue use of the Unit with such defects and errors, as is, or
terminate this Restated License Agreement. PVI's warranty obligation with
respect to a specific Unit shall be void if such Unit, or any portion thereof,
is modified by Licensees without PVI's written consent.
4.2 Limitation of Warranty. THE LIMITED WARRANTY PROVIDED IN SECTION 4.1
IS THE ONLY WARRANTY WITH RESPECT TO THE L-VIS(R) SYSTEM AND THE UNITS. PVI DOES
NOT MAKE, AND LICENSEES DO NOT RECEIVE, ANY OTHER WARRANTY, EXPRESS OR IMPLIED,
AND ALL OTHER WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
WITH RESPECT TO THE L-VIS(R) SYSTEM OR ANY PORTION THEREOF, THE UNITS, THE
DOCUMENTATION OR ANY SERVICES FURNISHED UNDER THIS RESTATED LICENSE AGREEMENT
ARE EXPRESSLY EXCLUDED.
4.3 Intellectual Property Enforcement, Infringement; Indemnification.
(a) With respect to any claims of infringement in the Territory with
respect to a patent, copyright, or trade secret which covers the L-VIS(R) System
or any portion thereof, PVI shall have the first right, but not the duty, to
institute infringement actions against Third Parties. If PVI does not institute
an infringement proceeding against an offending Third Party, Licensees shall
have the right, but not the duty, to institute such an action, provided that PVI
shall also appear as a party as licensor and shall have the right to assume
control of any infringement proceeding instituted by Licensees by reimbursing
Licensees for all of the costs and expenses incurred by Licensees in connection
therewith.
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(b) PVI shall defend, at its expense, any action brought against
Licensees to the extent that such action is based on a claim that the use of the
L-VIS(R) System, within the scope of this Restated License Agreement, infringes
any patent, trade secret or copyright, other than claims to the extent arising
from Licensee's failure to obtain Required Permissions.
(c) PVI shall indemnify Licensees from and against any costs,
damages or fees incurred, including amounts paid in settlement (provided, so
long as PVI is defending such action at PVI's expense and has confirmed that
such action is fully subject to PVI's indemnification obligation hereunder, that
any such settlement made at PVI's expense is approved by PVI, such approval not
to be unreasonably withheld), by Licensees in any action under this Section 4.3
which are attributable to claims that the use of the L-VIS(R) System (including
any General Improvements), within the scope of this Restated License Agreement,
infringes any patent, trade secret or copyright, other than claims to the extent
arising from Licensee's failure to obtain Required Permissions. Licensees shall
notify PVI promptly in writing of any such claim, (provided that such notice
shall not constitute a condition precedent to indemnification hereunder) and
shall provide at PVI's expense, all available information, and reasonable
assistance and authority to enable PVI to defend it. Licensees shall also permit
PVI to defend, compromise or settle such claims as long as such compromise or
settlement is at no cost to Licensees, includes a complete release of Licensees
and does not purport to materially restrict any Licensee's future activity.
(d) The costs and expenses of any action under this Section 4.3
(including reasonable fees of attorneys and other professionals) shall be borne
by the party instituting and maintaining, or defending, such action, as the case
may be. If, however, the parties together institute and maintain or defend such
action, such costs and expenses shall be borne by the parties in such
proportions as they may reasonably agree in writing. Each party shall execute
all necessary and proper documents and take such actions as shall be appropriate
to allow the other party to institute and maintain, or defend, such action,
provided such other party has the right to do so under this Section 4.3. Any
award paid by Third Parties as a result of any such action (whether by way of
settlement or otherwise) shall be paid to the party who instituted and
maintained, or defended, such action, as the case may be. If, however, both
parties did so, then such award shall be allocated between the parties in
proportion to their respective injuries and contributions to the costs and
expenses incurred in such action, or as they may have otherwise agreed.
(e) In the event that the L-VIS(R) System, or any part thereof,
becomes or in PVI's opinion is likely to become the subject of a claim of
infringement, PVI may: (i) procure for Licensees, at no cost to Licensees, the
right to continue to use the L-VIS(R) System, (ii) replace or modify the
L-VIS(R) System, at no cost to Licensees, to make the L-VIS(R) System
non-infringing, provided that the same functions at comparable levels are
performed by the replaced or modified system, or (iii) if the right to continue
to use cannot be reasonably procured or the L-VIS(R) System cannot be reasonably
replaced or modified, terminate this Restated License Agreement.
(f) THIS SECTION 4.3 STATES THE ENTIRE LIABILITY OF PVI WITH RESPECT
TO INFRINGEMENT OF PATENTS, TRADE SECRETS OR COPYRIGHTS BY THE L-VIS(R) SYSTEM
OR ANY PORTION THEREOF, AND PVI SHALL HAVE NO
14
ADDITIONAL LIABILITY WITH RESPECT TO ANY ALLEGED OR PROVEN INFRINGEMENT.
4.4 Exclusion and Disclaimer of Damages.
(a) PVI SHALL NOT HAVE ANY LIABILITY FOR INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS
OF ANTICIPATED REVENUE OR OTHER DAMAGES ARISING FROM THE LOSS OF USE OF THE
L-VIS(R) SYSTEM, EVEN IF PVI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
(b) PVI'S TOTAL LIABILITY FOR DAMAGES UNDER THIS RESTATED LICENSE
AGREEMENT SHALL NOT IN ANY EVENT EXCEED THE TOTAL AMOUNT OF PAYMENTS RECEIVED BY
PVI FROM LICENSEES UNDER THIS RESTATED LICENSE AGREEMENT.
(c) THE FOREGOING LIMITS CONTAINED IN CLAUSES (a) AND (b) ABOVE
SHALL NOT APPLY TO THE EXTENT DAMAGES RESULT FROM PVI'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
4.5 Allocation of Risk. The parties acknowledge and agree that the pricing
and other terms of this Restated License Agreement have been established to
reflect the allocation of risk set forth in this Section 4 and elsewhere in this
Restated License Agreement.
5. CONFIDENTIAL AND PROPRIETARY INFORMATION.
5.1 Confidential and Proprietary Information.
(a) Licensees acknowledge and agree that the L-VIS(R) System
constitutes a valuable asset of PVI and that the information contained in the
L-VIS(R) System, and any other information that PVI has disclosed or discloses
to Licensees prior to the date hereof or during the Term, as the case may be,
which PVI indicated or indicates at the time of disclosure is confidential, is
confidential and proprietary information of PVI (all such information
collectively, the "Information"). Each Licensee agrees that during the Term and
for a period of five years after any termination of this Restated License
Agreement, it will not, without PVI's prior written consent, directly or
indirectly, (i) reveal, report, publish, disclose or transfer any Information to
any Third Party other than Licensee's agent or representative, or (ii) use any
Information for any purpose or for the benefit of any Third Party, except as
expressly authorized in this Restated License Agreement. Each Licensee shall
make reasonable efforts to notify and inform its agents, representatives and
employees who have access to the L-VIS(R) System or any Information of such
Licensee's limitations, duties and obligations regarding non-disclosure and use
of the Information. Licensees shall not, and shall not permit any of their
respective agents, representatives or employees, to remove any proprietary or
other legends or restrictive notices contained in or included in any
Information. In no event shall Licensees use less care to maintain the
confidentiality of the Information than they use to maintain the confidentiality
of their own confidential and proprietary information.
15
(b) "Confidential and Proprietary Information" shall not include any
information which (a) was rightfully in the Licensee's possession prior to
receipt from PVI other than through prior disclosure by PVI; (b) now is or
hereafter becomes available to the public (including, without limitation, any
information filed with any governmental agency and available to the public)
other than as the result of a disclosure by the Licensee in breach hereof, (c)
becomes available to the Licensee on a nonconfidential basis from a source other
than PVI which the Licensee does not believe is prohibited from disclosing such
information to the Licensee prior to, any disclosures made by PVI to the
Licensee of such information. Additionally, PVI agrees that the Licensee shall
have no obligation with respect to any disclosure of Confidential and
Proprietary Information to the extent it is required to be disclosed by the
Licensee by order of a court of competent jurisdiction, administrative agency or
governmental body, or by any law, rule or regulation, or by subpoena, or any
other administrative or legal process, or by applicable regulatory or
professional standards, or in connection with any judicial or other proceeding;
provided that if Licensee is required to make any such disclosure of information
Licensee will give reasonably prompt notice of such requirement to PVI to permit
PVI to make application to contest or limit such disclosure.
5.2 Verification. PVI shall have the right to have its representatives
visit the sites where the Units are located at all reasonable times and upon
reasonable notice to verify the appropriate use and protection of the
Information.
5.3 Specific Performance. Licensees acknowledge that monetary damages
alone would not adequately compensate PVI in the event of a breach by Licensees
of this Section 5 or Section 2.3(a), and that, in addition to all other remedies
available to PVI at law or in equity, PVI shall be entitled to seek injunctive
relief for the enforcement of its rights, without the posting of bond or other
security, and to seek an accounting of profits made during the period of such
breach.
6. TERMINATION.
6.1 Expiration. The Term of this Restated License Agreement shall continue
to the fifth anniversary of the date on which the Term commences and shall
automatically continue for successive additional 5 year periods indefinitely
unless Cablevision gives written notice of its election not to so continue at
least 90 days prior to the expiration of the initial 5 year period or any
additional 5 year period for which the Term has been so extended.
6.2 Breach. Either party shall have the right to terminate this Restated
License Agreement if the other party is in default of any material obligation
hereunder and such default has not been cured by the other party within 30 days
after receipt of notice of such default (or, if such default cannot reasonably
be cured within such 30-day period, if the party in default does not commence
and diligently continue actions to cure such default during such 30-day period).
PVI shall notify Cablevision, in addition to the relevant Licensee, of any
alleged default. Either party may regard the other party as being in default
under this Restated License Agreement if the other party becomes insolvent,
makes a general assignment for the benefit of creditors, suffers or permits the
appointment of a receiver for its business or assets, or becomes subject to any
16
proceeding under any bankruptcy or insolvency law, whether domestic or foreign,
or has wound up or otherwise liquidated, voluntarily or otherwise.
6.3 Effect of Termination. Upon the expiration or termination of this
Restated License Agreement for any reason, Licensees shall immediately
discontinue use of the L-VIS(R) System and shall return all Documentation and
leased Units to PVI at a location designated by PVI, F.O.B. destination, freight
prepaid, within 30 days after such expiration or termination. Licensees shall
assume all risks of loss or damage until delivery at such location. Thereafter,
Licensees shall retain no rights in or to the L-VIS(R) System, the leased
Equipment or the Documentation. However, Licensees' ownership rights with
respect to the Equipment included in the Units purchased hereunder shall not be
affected by any termination or expiration of this Restated License Agreement. In
the event of termination of this Restated License Agreement by PVI for breach by
Licensees, such termination shall be in addition to and not in lieu of any other
remedies, at law or in equity, available to PVI.
6.4 Surviving Rights and Obligations. The parties' respective rights and
obligations regarding insurance (specifically, Section 2.4(c)), ownership
(2.12), Trademarks (2.14(b)), revenue sharing payments and records (3.4 - 3.10),
limitation of remedies (4.2 and 4.4), intellectual property enforcement and
infringement (4.3), confidentiality (5), termination (6.3 and 6.4) and other
miscellaneous rights and obligations (7.1, 7.4, 7.6, 7.10, 7.11, 7.12 and 7.17
shall survive expiration or termination of this Restated License Agreement.
Termination, relinquishment or expiration of this Restated License Agreement for
any reason shall be without prejudice to any rights which shall have accrued to
the benefit of either party prior to such termination, relinquishment or
expiration. Such termination, relinquishment or expiration shall not relieve
either party from obligations which are expressly indicated to survive
termination or expiration of this Restated License Agreement.
7. MISCELLANEOUS.
7.1 Relationship. This Restated License Agreement shall not be construed
as creating a partnership, joint venture or employment relationship between the
parties, and nothing contained herein shall be construed as causing either party
to be the employee, agent or representative of the other. Neither party shall
make any warranties or representations, or incur any obligations whatsoever, on
behalf of or in the name of the other party.
7.2 Representations and Warranties. Each party hereby represents and
warrants to the other as follows:
(a) Such party has the power to execute, deliver and perform this
Restated License Agreement in accordance with its terms;
(b) Such party's execution, delivery and performance of this
Restated License Agreement, and the consummation of the transactions
contemplated hereby, have been duly authorized by all requisite corporate action
on the part of such party, have received all required governmental approvals and
do not and will not violate any provision of law or other agreement to which
such party is subject;
17
(c) Such party has obtained all governmental approvals required in
connection with the execution of this Restated License Agreement and the
performance of all of such party's obligations hereunder; and
(d) This Restated License Agreement, when executed by such party,
shall constitute the valid and legally binding obligation of such party,
enforceable in accordance with its terms.
7.3 Assignment. Licensees may not grant, assign, sublicense or otherwise
convey this Restated License Agreement or its rights and obligations hereunder,
in whole or in part, to any Third Party, except as specifically provided
otherwise in this Restated License Agreement. Any such purported assignment by
Licensees shall be void. This Restated License Agreement shall be binding upon
the successors and permitted assigns of the parties, and the name of a party
appearing herein shall be deemed to include the names of such party's successors
and permitted assigns to the extent necessary to carry out the intent of this
Restated License Agreement.
7.4 Indemnification by Licensees; No Limitation of Liability.
(a) In addition to the specific remedies stated in this Restated
License Agreement, Licensees shall indemnify and hold PVI harmless from and
against any demands, claims or liability resulting from or arising out of the
Licensee's breach of its obligations under Sections 2.4(c) and 2.9(b).
(b) In no event shall the maximum coverage provided by any
policy(ies) of insurance that Licensees are required to maintain hereunder
constitute a limitation on Licensees' liability under this Restated License
Agreement.
7.5 Force Majeure. Neither party shall be liable to the other for loss or
damages or shall have any right to terminate this Restated License Agreement for
any default or delay attributable to any act of God, flood, fire, explosion,
strike, lockout, labor dispute, shortage of raw materials, casualty or accident,
war, revolution, civil commotion, act of public enemies, blockage or embargo,
injunction, law, order, proclamation, regulation, ordinance, demand or
requirement of any government or subdivision, authority or representative of any
such government, or any other cause beyond the reasonable control of such party,
if the party affected shall give prompt notice of any such cause to the other
party. The party giving such notice shall thereupon be excused from such of its
obligations hereunder as it is thereby disabled from performing for so long as
it is so disabled and for 30 days thereafter; provided, however, that if any
event of force majeure prevents Licensees from materially performing their
obligations under this Restated License Agreement for a period in excess of 18
months, PVI shall have the right to terminate this Restated License Agreement
upon 30 days' notice to Licensees. Notwithstanding the foregoing, nothing in
this Section 7.5 shall excuse or suspend the obligation to make any payment due
hereunder in the manner and at the time provided.
7.6 Notices. All notices and communications required or permitted under
this Restated License Agreement shall be in writing and delivered by any method
providing for proof of delivery. Any notice shall be deemed to have been given
on the date of receipt. Notices shall
18
be delivered to a party at the address for such party as set forth in the Stock
Purchase Agreement (or at such other address for a party as shall be specified
by like notice, provided that notices of a change of address shall be effective
only upon receipt thereof).
7.7 Waiver. No provision of this Restated License Agreement shall be
waived by any act, omission or knowledge of a party or its agents or employees
except by an instrument in writing expressly waiving such provision and signed
by the waiving party. The waiver by either party of the breach of any provision
of this Restated License Agreement shall not operate or be construed as a waiver
of any other or subsequent breach thereof.
7.8 Severability. The provisions of this Restated License Agreement are
severable, and if any one or more of these provisions is held to be invalid or
unenforceable, in whole or in part, the remaining provisions and any partially
enforceable provision shall be and remain binding and enforceable.
7.9 Further Actions. Each party agrees to execute, acknowledge and deliver
such further instruments, and to do all such other acts, as may be necessary or
appropriate in order to carry out the purposes and intent of this Restated
License Agreement.
7.10 Governing Law. The rights and obligations of the parties hereto shall
be governed by and construed in accordance with the laws of the State of New
York without regard to conflicts of law principles.
7.11 Compliance with Law. Nothing in this Restated License Agreement shall
be deemed to permit a party to export, re-export or otherwise transfer any Unit
without compliance with all applicable laws.
7.12 Taxes. In addition to the other amounts payable under this Restated
License Agreement, Licensees shall pay, or reimburse PVI for, all sales, use,
value added, excise, personal property or similar taxes (other than taxes on or
based upon PVI's net income) which may be levied or imposed by any taxing
authority with respect to the transactions and payments contemplated by this
Restated License Agreement.
7.13 Amendment. No amendment, modification or supplementation of any
provision of this Restated License Agreement shall be valid or effective unless
made in writing and signed by a duly authorized officer of PVI and Cablevision.
Each additional Schedule B executed by the parties pursuant to the terms of this
Restated License Agreement shall constitute an amendment of this Restated
License Agreement.
7.14 Descriptive Headings. The descriptive headings of this Restated
License Agreement are for convenience only, and shall be of no force or effect
in construing or interpreting any of the provisions of this Restated License
Agreement.
7.15 Counterparts. This Restated License Agreement and all of the
Schedules hereto may be executed simultaneously in two counterparts, either one
of which need not contain the signature of more than one party, but both such
counterparts taken together shall constitute one and the same instrument.
19
7.16 Entire Agreement. This Restated License Agreement, including all of
the Schedules hereto, as may be added to or amended from time to time,
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes any and all prior negotiations, correspondence,
understandings and agreements, whether oral or written, between the parties
respecting the subject matter hereof.
7.17 No Third Party Beneficiaries. Nothing in this Restated License
Agreement, express or implied, is intended to, or shall, confer upon any Third
Party (other than the Licensed Affiliates) any legal or equitable right, benefit
or remedy of any nature whatsoever.
7.18 Stand Alone. Each of this Restated License Agreement, the Restated
Collaboration Agreement and the iPoint Agreement are independent agreements and
the rights and obligations of the parties under the Restated License Agreement
are independent of the rights and obligations of the parties under each of the
other agreements.
* * *
20
22
ACCEPTED AND AGREED TO ACCEPTED AND AGREED TO
PVI: LICENSEES:
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------ ------------------------------------
Name: Xxxxxxx Xxxxxxxx Name: Xxxxxx X. Xxxxx
---------------------------- -----------------------------------
Title: Co-CEO Title: Vice Chairman and General Counsel
--------------------------- ----------------------------------
Date: June 25, 2002 Date: June 25, 2002
--------------------------- ----------------------------------
PRINCETON VIDEO IMAGE, INC.
SYSTEM LICENSE AGREEMENT
SCHEDULE A
DESCRIPTION OF LICENSED SYSTEM
The current L-VIS(R) products, which are the subject of this Restated License
Agreement, are all current television broadcast applications based on PVI's
hardware and software technology in which the inserts are placed in the video
upstream, prior to the distribution of the program. The inserts either are
distributed to the entire audience or the inserts may be targeted or
narrow-casted. In the case of targeted or narrow-casted inserts, it is only in
the sense that multiple video feeds are generated upstream, each feed including
the insert, going to a target audience. Inserts changed for subsequent reruns of
the original programs are included in these products as long as the inserts are
put in upstream. In all cases of the current products, the insert is done at the
same location that the position of the insert is determined. These current
products are distinguished from future PVI products not included within the
license granted under this Restated License Agreement except to the extent of
the L-VIS(R) license granted under the iPoint Agreement. Such future products
include, inter alia, those where the position of the insertion is determined
upstream and the insertion is executed downstream. These downstream insertion
products may insert features into video at numerous locations, including a
satellite down link, a cable head end, a neighborhood distribution site, an
Internet web server, at individual homes or establishments, or even individual
receivers within a home or establishment. PVI has already developed technology
and intellectual property relating to this general class of downstream insertion
products that are the subject of separate agreements with Licensees. The L-VIS
Equipment, Software and Documentation licensed under this Restated License
Agreement shall be deemed to include any future systems created by PVI, only to
the extent that such future systems materially implement the above-described
functionality of upstream insertion.
PRINCETON VIDEO IMAGE, INC.
SYSTEM LICENSE AGREEMENT
SCHEDULE B
EQUIPMENT CERTIFICATE
FOR
INITIAL UNIT
[CONFIDENTIAL TREATMENT REQUESTED]
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