EXHIBIT 10.1
*Certain information in this document has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
BRAVO COMPANY
0000 XXXXXXX XXXXXX
XXXXXXXX, XXX XXXX 00000
Xxxxx.xxx
000 Xxxxxxx Xxxxxx, 0/xx/ Xxxxx
Xxx Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
This letter shall confirm the terms of the agreement (the "Agreement")
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between Bravo Company ("Bravo") and Xxxxx.xxx ("Salon") (Bravo and Salon may be
----- -----
referred to as "Party") for the licensing of Content on Websites (as defined
-----
below) Controlled (as defined below) Bravo or Salon and for the sale of
advertising on on-line sites Controlled by Bravo or Salon, respectively.
For the purposes of this Agreement, a "Website" is defined as a site
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with pages hosted at a particular URL address which is accessed generally by the
public without charge, such as xxx.xxxxx.xxx and "Controlled" shall mean the
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Website is operated by or its operations is controlled by Salon or its
Affiliates ("Salon Controlled Websites") or Bravo or its Affiliates ("Bravo
------------------------- -----
Controlled Websites"). A co-branded Website is not considered Controlled by a
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Party. If a Website ceases to be Controlled by a Party, the licenses in this
Agreement shall terminate with respect to such Website sixty (60) days after
such Control terminates. "Affiliates" shall mean companies which are controlled
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by a particular company. For these purposes, "control" shall mean the ability,
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directly or indirectly, to vote fifty percent (50%) or more of the shares or
interests which elect the management of an entity. "Content" shall mean the
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articles, audio or video on a Website, but shall not include advertisements,
chat room contributions or other material not displayed to the public in general
on a Website. "Term" and "Promotional Period" are defined in Section 6.
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1. Rights Granted.
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(a) Subject to any limitations imposed on Content licensed by third
parties to Bravo, Bravo grants to Salon during the Term a non-exclusive,
worldwide, royalty-free license, with the right to sublicense to Salon
Affiliates on the same terms, the right to reproduce, distribute, publicly
display, publicly perform and modify solely for editorial purposes on Salon
Controlled Websites (i) Content on the Xxxxxxx.xxx Website or any other Website
Controlled by Bravo or its Affiliates, (ii) which is requested by Salon for use
in connection with a particular related story or related feature on the
Xxxxx.xxx Website or any other Salon Controlled Website and (iii) which Bravo
agrees to provide, which agreement shall not be unreasonably withheld.
(b) Subject to any limitations imposed on Content licensed by third
parties to Salon, Salon grants to Bravo during the Term a non-exclusive,
worldwide, royalty-free license, with the right to sublicense to Bravo
Affiliates on the same terms, the right to reproduce, distribute, publicly
display, publicly perform and modify solely for editorial purposes on Bravo
Controlled Websites (i) Content on Xxxxx.xxx or a Salon Controlled Website, (ii)
which is requested by Bravo for use in connection with a particular related
story or related feature on Xxxxxxx.xxx or any other Bravo Controlled Website
and (iii) which Salon agrees to provide, which agreement shall not be
unreasonably withheld.
(c) Subject to any limitations imposed on Content licensed by third
parties to Salon, Salon grants to Bravo during the Promotional Period, a non-
exclusive, worldwide, royalty-free license with the right to sublicense to BC
Affiliates on the same terms to reproduce, distribute, publicly perform,
publicly display and modify solely for editorial purposes on the Bravo pay
television network as it exists on the
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Effective Date or a television programming service operated by a BC Affiliate on
the Effective Date Content in the form of interstitial promotional
advertisements. "BC Affiliates" shall mean a company or entity controlled by,
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controlling or under common control with Bravo; "control" shall mean the right
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to vote, directly or indirectly, more than fifty percent (50%) of the shares or
voting interests of the board of directors or management of such entity. The
scope of the license may change upon sixty (60) days prior written notice by
Bravo to Salon if Bravo extends its distribution methods: Salon may give notice
to Bravo during such period of any Content which may not be licensed in the new
channels of distribution and the license for such Content shall not be extended
to new channels of distribution. To the extent Bravo or any of the BC Affiliates
uses Content from Salon Controlled Websites in connection with making available
such promotional inventory, Bravo or such BC Affiliate shall have sole
discretion over which Content is utilized, of how such Content is presented
(including the right to edit and re-format such Content), subject to the rights
of third parties and Salon's reasonable approval, and selection of distribution
platforms (e.g., television, broadband, wireless).
(d) Notwithstanding Paragraphs 1(a) and 1(b) hereof, neither Bravo
nor Salon shall be required to provide to the other Party any Content on any of
its Controlled Websites ("Supplying Party") which Bravo or Salon, as the case
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may be, does not have the right to make available for use on Websites not
Controlled by such Party; provided that each of Bravo and Salon shall use all
reasonable efforts to acquire the right to make Content on Websites Controlled
by such Party available to the other Party ("Receiving Party") hereto as
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contemplated by this Agreement. The Receiving Party shall have the right to
edit, alter or modify Content received from the other Party hereunder unless the
Supplying Party notifies the Receiving Party that the Supplying Party does not
have the right to permit the Receiving Party to edit or modify such Content (in
which event, upon the request of the Receiving Party, the Supplying Party shall
use all reasonable efforts to acquire the right to permit such Content to be
edited or modified as requested by the Receiving Party). Content made available
pursuant to Paragraphs 1(a) and 1(b) hereof may be displayed on the Website
Controlled by the Receiving Party in full or as a synopsys using the headline,
the first few lines of the Content and by providing a link to the Supplying
Party's Website for the balance of the Content.
(e) Each of Bravo and Salon shall provide the other Party with
password-encoded access to a separate server or FTP site created by the
Supplying Party and containing the Content to be provided under Paragraphs 1(a)
or 1(b) hereof. The Supplying Party shall make reasonable commercial efforts to
make access to such FTP site available twenty-four (24) hours per day during
each day of the year, but the Supplying Party shall not be responsible for lack
of access due to problems with the Receiving Party's Internet Service Provider
("ISP"), the Supplying Party's third party web host or general Internet access
---
problems. Each Party shall consult with the other Party on a regular basis
concerning the Content schedules on Websites Controlled by such Party and shall
provide the other Party with such schedules as soon as they are finalized. Upon
the request of a Receiving Party, the Supplying Party shall use all reasonable
efforts to make available to the Receiving Party Content in electronic format
within twenty-four (24) hours' receipt of a request by Receiving Party posting
on the Receiving Party's Website.
(f) Trademarks.
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(i) (A) During the term of this Agreement and subject to the
terms and conditions of this Agreement, Salon hereby grants to Bravo, and Bravo
hereby accepts, a nonexclusive, nontransferable, limited, royalty-free license,
without the right to sublicense except to its Affiliates, to use the "Salon"
trademark and logo ("Salon Trademarks") solely to identify the source of Content
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from Salon Controlled Websites and to market such Content in accordance with the
terms of this Agreement.
(B) During the term of this Agreement and subject to the
terms and conditions of this Agreement, Bravo hereby grants to Salon, and Salon
hereby accepts, a nonexclusive,
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nontransferable, limited, royalty-free license, without the right to sublicense
except to its Affiliates, to use the "Bravo" trademark and logo ("Bravo
-----
Trademarks") solely to identify the source of Content from Bravo Controlled
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Websites and to market such Content in accordance with the terms of this
Agreement.
(C) Except in instances when Bravo or any of its
Affiliates uses Content supplied by Salon for delivering the promotional media
contemplated by the Stock Purchase Agreement, the logo of the Supplying Party
shall be featured immediately above or alongside the supplied Content with the
words "Provided by" preceding the trademark and the Supplying Party's on-line
site URL embedded and/or linked in such trademark.
(ii) (A) The nature and quality of the Content publicly
displayed or publicly performed by Bravo in connection with the Salon Trademarks
shall conform to the standards set by Salon as evidenced by the Xxxxx.xxx
Website at the time. Bravo's use of the Salon Trademarks shall conform to any
style guidelines which Salon may submit to Bravo from time to time. Bravo shall
not physically alter the Salon Trademarks without Salon's prior written consent.
Bravo will cooperate with Salon in facilitating its monitoring and control of
the nature and quality of such Content, and supply Salon with specimens of use
of the Salon Trademarks upon request. Bravo further agrees to (i) take all such
actions as Salon may reasonably request to assist Salon in perfecting its
rights, title and interest in the Salon Trademarks and the goodwill appurtenant
thereto, and (ii) refrain from taking any actions which may dilute the Salon
Trademarks and the goodwill appurtenant thereto.
(B) The nature and quality of the Content publicly
performed or publicly displayed by Salon in connection with the Bravo Trademarks
shall conform to the standards set by Bravo as evidenced by the Xxxxxxx.xxx
Website at such time. Salon's use of the Bravo Trademarks shall conform to any
style guidelines which Bravo may submit to Salon from time to time. Salon shall
not alter the Bravo Trademarks without Bravo's prior written consent. Salon will
cooperate with Bravo in facilitating its monitoring and control of the nature
and quality of such Content and supply Bravo with specimens of use of the Bravo
Trademarks upon request. Salon further agrees to (i) take all such actions as
Bravo may reasonably request to assist Bravo in perfecting its rights, title and
interest in the Bravo Trademarks and the goodwill appurtenant thereto, and (ii)
refrain from taking any actions which may dilute Bravo's Trademarks and the
goodwill appurtenant thereto.
(iii) (A) Bravo acknowledges and agrees that Salon is the sole
and exclusive owner of the Salon Trademarks and the goodwill appurtenant
thereto. Except as prohibited by law, Bravo agrees that it will not do anything
inconsistent with such ownership either during the term of this Agreement or
thereafter. Bravo agrees that use of the Salon Trademarks by Bravo shall inure
to the benefit of and be solely on behalf of Salon. Bravo acknowledges that its
utilization of the Salon Trademarks will not create or confer any right, title
or interest in the Salon Trademarks in Bravo.
(B) Salon acknowledges and agrees that Bravo is the sole
and exclusive owner of the Bravo Trademarks and the goodwill appurtenant
thereto. Except as prohibited by law, Salon agrees that it will not do anything
inconsistent with such ownership either during the term of this Agreement or
thereafter. Salon agrees that use of the Bravo Trademarks by Salon shall inure
to the benefit of and be solely on behalf of Bravo. Salon acknowledges that its
utilization of the Bravo Trademarks will not create or confer any right, title
or interest in the Bravo Trademarks in Salon.
(iv) (A) Bravo agrees that it will not adopt or use as part or
all of any corporate name, trade name, trademark, service xxxx or certification
xxxx, any trademark or other xxxx confusingly similar to the Salon Trademarks.
Bravo shall use the Salon Trademarks so that they create a separate and distinct
impression from any other trademark that may be used by Bravo. Bravo agrees that
it will not
42
contest any Salon registration or application for any of the Salon Trademarks.
Bravo shall comply with all applicable laws and regulations pertaining to the
proper use and designation of the Salon Trademarks.
(B) Salon agrees that it will not adopt or use as part or
all of any corporate name, trade name, trademark, service xxxx or certification
xxxx, any trademark or other xxxx confusingly similar to the Bravo Trademarks.
Salon shall use the Bravo Trademarks so that they create a separate and distinct
impression from any other trademark that may be used by Salon. Salon agrees that
it will not contest any Bravo registration or application for any of the Bravo
Trademarks. Salon shall comply with all applicable laws and regulations
pertaining to the proper use and designation of the Bravo Trademarks.
2. Representations and Warranties: Each of Bravo and Salon
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represents and warrants to the other that:
(a) All Content made available by the Supplying Party to the
Receiving Party pursuant to Paragraph 1(a), 1(b) or 1(c) hereof, as the case may
be, will be either original or licensed for use as provided in this Agreement by
the person(s) or entity(ies) which have the right to grant such licenses.
(b) The use of Content provided by the Supplying Party by the
Receiving Party as permitted by this Agreement will not violate or infringe on
any rights of any person or entity.
(c) With respect to the non-dramatic public performance rights to any
musical compositions contained in Content made available by a Supplying Party to
the Receiving Party pursuant to Paragraph 1(a) or 1(b) hereof, as the case may
be, such rights shall be (i) controlled by ASCAP, BMI or SESAC; (ii) controlled
by the Supplying Party and not available from a performing rights society, in
which case such rights are granted herein; or (iii) in the public domain in all
jurisdictions.
(d) Each Party has full right, power and authority to enter into this
Agreement and to satisfy all of the obligations to be rendered and satisfied,
respectively, by it hereunder, and there are no claims, facts or circumstances
existing or pending which would prevent such Party's full performance of its
obligations hereunder.
3. Insurance: Throughout the period commencing on the date hereof and
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terminating no earlier than the expiration of this Agreement, each Party shall
provide and maintain, in full force and effect, at its own cost and expense, a
broadcaster's and advertiser's liability insurance (errors and omissions
coverage) policy or policies that covers any and all claims arising out of or
relating to (i) errors and omissions relating to media liability or (ii) the
Content licensed to the Receiving Party under this Agreement. Such policy shall
be in the amount of $1,000,000 for any one claim and $3,000,000 in the aggregate
in each annual policy period. Each Party shall furnish the other with a
certificate of insurance evidencing the existence of said insurance coverage,
naming the other Party as an additional insured. No such policy may be cancelled
or materially modified without the other Party's prior approval, such approval
not to be unreasonably withheld.
4. Indemnification.
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(a) Each party ("Indemnifying Party") will defend, indemnify and hold
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harmless or, at its option, settle any claim or action brought against the other
Party, its officers, directors, BC Affiliates and sublicensees ("Indemnified
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Party") to the extent that it is based upon a claim that the Content provided by
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the Indemnifying Party used within the scope of this Agreement violates the
warranties in Section 2, and the Indemnifying Party will pay any costs, damages
and reasonable attorney fees reasonably incurred by the Indemnified Party that
are attributable to such claim which are assessed against the Indemnified Party
in a final judgment and/or settlement. The Indemnified Party agrees that the
Indemnifying Party shall be released from the foregoing obligation unless the
Indemnified Party promptly notifies the Indemnifying
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Party in writing of the claim, or notice of claim, and that the Indemnifying
Party has sole and complete control of the defense and/or settlement of such
claim and the full cooperation of the Indemnified Party therein. The foregoing
states the Indemnifying Party's entire liability to the Indemnified Party with
respect to infringement.
(b) In the event of such infringement, the Indemnifying Party will at
its sole option and expense either:
(i) procure for the Indemnified Party the right to continue
the use of the Indemnifying Party's Content;
(ii) replace or modify the Indemnifying Party's Content to make
its use non-infringing; or
(iii) if, in the Indemnifying Party's reasonable opinion,
neither (a) nor (b) above are commercially feasible, terminate the Indemnified
Party's right to use the infringing Content.
(c) The Indemnifying Party shall have no liability under this Section
for any claim or action where such claim or action arises from, is the result
of, or is in connection with:
(i) any modification made to the Indemnifying Party's Content
after delivery to the Indemnified Party;
(ii) the Indemnified Party continues allegedly infringing
activity after being informed of modifications that would have avoided the
alleged infringement or after being informed that the license is terminated as
provided in Section 4(b)(iii); or
(iii) the Indemnified Party's use of the Indemnifying Party's
Content is not strictly in accordance with the terms of
this Agreement. The Indemnified Party will be liable for
all damages, costs, expenses, settlements and attorneys'
fees related to any claim of infringement arising as a
result of (i)-(iii) of this Article.
(d) If the Supplying Party reasonably believes that the Content
supplied to the Receiving Party may violate the rights of a third party, it may
notify the Receiving Party who agrees to promptly cease using such Content. So
long as the Supplying Party indemnifies the Receiving Party as provided in this
Section 4 for all losses with respect to the period through thirty (30) days
after the date of such notice to the Receiving Party, such breach of Section
2(b) shall not be considered a breach of this Agreement and such indemnity shall
be the sole and exclusive remedy of the Receiving Party.
5. Advertising Representation.
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(a) For a period of two (2) years from the date hereof, Bravo
appoints Salon as a non-exclusive advertising sales representative for the sale
of advertising on Bravo Controlled Websites. For a period of two (2) years from
the date hereof, Salon appoints Bravo as a non-exclusive sales representative on
Salon Controlled Websites. Acting in the capacity of such representative, each
of Salon and Bravo are sometimes hereinafter referred to in this Section 5 as a
"Representative". Bravo shall have the right to delegate its rights and
obligations as a Representative for Salon Controlled Websites under this Section
5 to Rainbow Advertising Sales Corporation ("Rainbow Ad Sales") so long as
Rainbow Ad Sales is under common "control" (as defined in Section 1) with Bravo,
provided that Bravo shall guarantee all actions or inaction of Rainbow Ad Sales
which result in a breach by Rainbow Ad Sales of any such obligations so
delegated. Advertising inventory on Controlled Websites shall be made available
to the applicable Representative for sale hereunder in substantially the same
manner and formats that such inventory is made available to all other
advertising representatives for the Controlled Websites (including without
limitation, in-house advertising representatives).
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(b) In consideration of the services of each Representative, each
Representative shall receive a commission of [****]. "Net Advertising Revenue"
-----------------------
is defined as gross advertising revenue less applicable agency commissions
received by the Party Controlling the Website in cash or barter (approved by the
Party Controlling the Website in its sole discretion - the "Advertising Party")
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from sales of advertising made by such Representative pursuant to this
Agreement; provided the Advertising Party may deduct from future commissions
amounts to reflect failure to pay invoices or provide bartered services. The
Advertising Party shall be responsible for invoicing all advertisers for which a
Representative places advertising on Controlled Websites within ten (10) days
after the end of each calendar month. Each Advertising Party shall remit any
commissions payable hereunder to the applicable Representative within sixty (60)
days of the invoice date. Within ten (10) days after the end of each calendar
month, the Advertising Party shall supply the applicable Representative with
copies of all invoices for sales of advertising made by such Representative.
(c) Notwithstanding the termination or expiration of this Agreement,
each of Bravo and Salon, as the case may be, shall continue to perform all
advertising contracts sold by the applicable Representative prior to such
termination or expiration and to pay all commissions due hereunder.
(d) Each Representative shall provide to the Advertising Party a list
of advertisers that such Representative proposes to solicit for the sale of
advertising on the other's on-line sites. The Advertising Party, in each case,
may, in its sole discretion, authorize the Representative to solicit any
advertiser on the list, or decline to authorize the Representative to solicit
any advertiser on the list. Each Representative shall solicit only those
advertisers authorized by the Advertising Party. Each Representative shall
comply with the policies, directions and specifications governing the sale,
solicitation and/or exhibition of advertising or promotional material on the
Website Controlled by the Advertising Party, of which the applicable
Representative has been advised in writing. The Advertising Party shall have the
right to reject advertisements which fail to comply with any such policies and
directions. Each Representative shall not enter into any barter arrangements on
behalf of the Advertising Party without prior written notice of all material
terms and the express written consent of the Advertising Party. The Advertising
Party shall provide the applicable Representative with the rate card applicable
to advertising sales on its Websites, and each Representative shall notify and
obtain the prior approval of the applicable Party of any reductions from such
rate card other than those which are immaterial in nature.
(e) Each Representative shall have access to any advertising sales
materials created by the other Party in connection with such Party's on-line
sites, at such Party's cost of creating such materials. Any sales and marketing
materials created or proposed for use by each Representative in connection with
the sale or marketing of advertising inventory hereunder shall be approved in
advance by the Advertising Party such approval not to be unreasonably withheld.
6. Term.
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(a) Except as otherwise provided in this Section 6, the term of the
obligations in Sections 1(a), (b), (d) and (e), (f)(i) and (f)(ii) and all
obligations relating thereto (except as provided in Section 8(n)) shall commence
on the date hereof and shall continue through December 31, 2005 . The term may
be extended by mutual agreement of the Parties. The Term of the licenses in
Section 1(c) and (f) shall commence on the date hereof and terminate upon
December 31, 2009 unless extended as provided in the Stock Purchase Agreement of
even date ("Promotional Period").
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(b) Subject to applicable law, either Party may terminate this
Agreement immediately if the other Party ceases to carry on business as a going
concern, makes a general assignment for the benefit of its creditors, or
appoints a receiver or is a party to any proceeding under bankruptcy or
insolvency legislation.
* Certain information in this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested to the omitted
portions.
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(c) Either Party may terminate this Agreement if the other Party is
in material breach of any of its obligations and such default is not remedied
within thirty (30) days of receipt of written notice thereof; provided that if
the breach is not a failure to pay money and is of such a nature that is cannot
reasonably be cured within such thirty (30) day period, but it is curable and
such Party in good faith begins efforts to cure it within such thirty (30) day
period and continues diligently to do so, such Party shall have a reasonable
additional period not to exceed sixty (60) days from the notice thereafter to
effect the cure.
7. Audits.
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(a) No more than once annually, either Party shall have the right to have
an inspection and audit of the records of the other Party conducted by an
independent certified public accountant reasonable acceptable to the Party to be
audited (the "Auditor"), which inspection and audit shall be conducted upon
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reasonable prior written notice, during regular business hours at the offices of
such other party and in such a manner as not to interfere with its normal
activities. The Auditor will be required to sign a confidentiality agreement in
a form containing terms and conditions customarily found in such agreements. The
Party requesting the audit shall be responsible for the fees and costs of the
Auditor, unless a shortfall of greater than ten percent (10%) is discovered
during such audit, in which case the party audited shall bear the costs of the
audit, in addition to paying the full amount of the shortfall in Revenue, and
all interest due thereon as set forth in Section 7(b) below. All information
received in connection with such audits, and the results thereof, will be deemed
confidential information subject to the terms of Section 8(g). Each Party shall
maintain these records for one year after the Term and such audit rights shall
also survive for such one year period.
(b) Overdue accounts shall be charged interest on a monthly basis,
calculated at an annual rate of the lesser of twelve percent (12%) or the
maximum rate allowed by law.
8. Miscellaneous:
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(a) In no event shall this Agreement be construed to create any
employment, agency, partnership or joint venture relationship between the
parties.
(b) Except as otherwise provided in Section 5(a) hereof and except
for an assignment of this Agreement by either Party to a purchaser of all or
substantially all of the business or assets of such Party, this Agreement shall
not be assigned by either Party in whole or in part without the written consent
of the other, which consent shall not be unreasonably withheld or delayed. Any
assignment in violation of the terms hereof shall be void ab initio and of no
force or effect.
(c) This Agreement, together with the Registration Rights Agreement,
the Stock Purchase Agreement and the Production Agreement, dated the date
hereof, between Salon and Bravo, set forth the entire agreement between the
parties with respect to the subject matter hereof and supersede all prior
understandings and agreements (whether written or oral) related hereto. This
Agreement may not be modified, amended or waived except in a writing signed by
both parties.
(d) Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 2 OF THIS
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AGREEMENT, EACH PARTY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR
WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
(e) This Agreement shall be governed by the laws of the State of New
York applicable to agreements entered into and wholly performed therein without
regard to its choice of law provisions, and each Party hereby consents to the
jurisdiction of any state or federal court located in the State of New York.
(f) In the event that Salon should determine to seek any recourse,
action or claim against Bravo to which it may be entitled under or by reason of
this Agreement, Salon hereby agrees that any such recourse, action or claim
shall extend only to Bravo and not to any of Bravo's partners.
(g) (i) Each Party acknowledges that the proprietary information
of the other party which it knows or has reason to know is considered
confidential by the Disclosing Party ("Confidential Information") ("Discloser")
------------------------
and this Agreement is trade secret to, and constitutes confidential information
of the Discloser. The receiving party ("Recipient") therefore agrees to maintain
---------
such items secret and in
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confidence for the Discloser, using no less than reasonable care, and shall not
disclose any of these items to any persons other than employees of Recipient
with a need to know, without the prior written consent of the Discloser.
Unauthorized use or disclosure of Discloser's confidential information may cause
irreparable harm to the Discloser, and the Recipient agrees that the Discloser
shall have the right to seek injunctive relief to enforce the terms of this
Agreement.
(ii) The confidentiality and non-disclosure obligations of the
Parties set out in this Section 8(g) shall not apply to the extent of
Confidential Information that either:
(A) Becomes lawfully available to the general public
from a source other than by a breach of this Agreement;
(B) Is lawfully obtained by the Recipient from a third
party or parties unconnected with Recipient, as applicable, without breach of
any confidentiality obligations;
(C) Is obtained by the obtaining party with the
Discloser's written approval; or
(D) Is disclosed under operation of the law or to
establish the rights of either Party under this Agreement, provided that that
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Party obligated to make such disclosure gives the other Party prompt notice of
such intended disclosure to allow such other Party to attempt to narrow or
prevent such disclosure.
(h) Each of Bravo and Salon shall run during each calendar quarter
during the Term hereof at least 250,000 impressions of advertisements for, and
supplied by, the other Party. An "Impression" shall mean each request by a third
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party to a web server on a Website Controlled by a Party which results in a
display of an advertisement relating to the other Party to the requesting party.
Such Impressions may be run on Xxxxxxx.xxx or Xxxxx.xxx (as the case may be),
or, subject the prior approval of Bravo or Salon (as the case may be), such
approval not to be unreasonably withheld, any other Controlled Website.
(i) The parties shall consult with each other concerning the
possibility of periodically developing joint on-line sites to support joint
editorial or marketing campaigns.
(j) Any and all notices or other information to be given by one of
the Parties to the other shall be deemed sufficiently given when forwarded by
certified mail (receipt requested), facsimile transmission or hand delivery to
the other Party at the following address:
If to Bravo: Bravo Company
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: President
Fax No:____________________
With a copy to:
Rainbow Media Holdings, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: General Counsel
Fax No: (000) 000-0000
If to Xxxxx.xxx:
Xxxxx.xxx
000 Xxxxxxx Xxxxxx
0/xx/ Xxxxx
00
Xxx Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
Fax No: (000) 000-0000
With a copy to:
Xxxx X. Xxxxxxxxx, Esq.
Xxxx, Xxxx, Xxxx & Freidenrich LLP
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Fax No: (000) 000-0000
and such notices shall be deemed to have been received on the first business day
following the day of such facsimile transmission or hand delivery, or on the
fifth business day following the day of such forwarding by certified mail. The
address of either Party may be changed at any time by giving ten (10) business
days' prior written notice to the other Party in accordance with the foregoing.
(k) If any term of this Agreement is found to be invalid, illegal or
unenforceable, in whole or in part, by a body of competent jurisdiction, that
term shall be deemed severed from this Agreement to the extent of such
invalidity, illegality or unenforceability, and such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
any other term of the Agreement.
(l) The failure of a Party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver or
deprive that Party of the right hereafter to insist upon strict adherence to
that term or any other term of this Agreement.
(m) Except for the obligation to make payments hereunder,
nonperformance of either Party shall be excused to the extent that performance
is rendered impossible by strike, fire, flood, governmental action, failure of
suppliers, earthquake, or any other reason where failure to perform is beyond
the reasonable control of the non-performing Party.
(n) The following provisions shall survive termination of the
Agreement: 1(f)(iii), 1(f)(iv), 4, 5(b), 5(c), 7 and 8.
The submission of this Agreement to Salon or its agent or attorney for review or
signature does not constitute an offer to Salon. This instrument shall have no
binding force or effect until its execution and unconditional delivery by both
parties hereto. If you are in agreement with the foregoing, please sign in the
space provided below, whereupon this letter shall become a binding agreement
between Bravo and Salon.
Sincerely,
BRAVO COMPANY
By: /s/ Xxxx Xxxxx
-----------------------
Chief Executive Officer
ACCEPTED AND AGREED:
XXXXX.XXX
By: /s/ Xxxxxxx X'Xxxxxxx
-----------------------
Chief Executive Officer
48
