Exhibit 10.14
The marked portions of this Exhibit
have been omitted and filed separately
with the Commission pursuant to a
request for confidential treatment.
AGREEMENT
This Agreement, dated as of August 12, 1996, is made by and between
SEAVISION, INC., a Delaware corporation (hereinafter referred to as
"SeaVision"), and NORWEGIAN CRUISE LINE LIMITED, a Bermuda corporation
(hereinafter referred to as "NCL").
WHEREAS, NCL is in the business of offering cruise vacations to its
passengers; and
WHEREAS, NCL desires that its passengers have access to interactive
television and video entertainment services on board its vessels; and
WHEREAS, NCL wishes to earn incremental revenue from such interactive
television and video entertainment services; and
WHEREAS, SeaVision desires to provide to NCL, and NCL desires to obtain
from SeaVision, the aforementioned interactive television and video
entertainment services for use aboard the ship M/S Dreamward (the "Initial
Ship") and such other cruise vessels owned or operated by NCL as, from time to
time, may be designated by NCL (all such cruise vessels, collectively, the
"Ships" and, individually, a "Ship"); and
WHEREAS, NCL has requested that SeaVision provide such interactive
television services onboard the Ship S/S Norway; and
WHEREAS, SeaVision heretofore has installed on the Initial Ship the
hardware and software described or listed on Exhibit A attached hereto
(collectively, the "Installed Hardware and Software");
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Responsibilities.
----------------
(a) Subject to the terms and conditions hereof, SeaVision hereby agrees
to:
(i) Provide, for each Ship designated by NCL (including without
limitation the Initial Ship) at no charge to NCL, an interactive
television system
(the "System") consisting of the hardware and software described
or listed on Exhibit A attached hereto (collectively, the "System
Hardware and Software") and, in connection therewith, provide the
services (the "Services") set forth on Exhibit B attached hereto.
In addition thereto, SeaVision shall provide for, and install on,
the S/S Norway [Redacted -confidential treatment requested].
Until such time as SeaVision shall have received the aggregate
amount of [Redacted - confidential treatment requested]. Upon
SeaVision's receipt of such aggregate amount thereunder,
[Redacted - confidential treatment requested]. NCL hereby
acknowledges and agrees that the System Hardware and certain of
the interactive modules of the Software are installed on the
Initial Ship and, as of the date of this Agreement, the Hardware
and such installed modules of the Software are performing
satisfactorily. Notwithstanding anything contained herein or in
any other provision of this Agreement that might be construed to
the contrary [Redacted -confidential treatment requested],
SeaVision shall at all times retain title to all components of
the System, including all System Hardware and Software or other
hardware or software hereafter installed by Sea Vision on any
Ship hereunder.
(ii) Provide all personnel reasonably necessary and appropriate to
operate the System and provide the Services. One (1) SeaVision
technician (the "Manager") will remain on-board each Ship on
which the System is then installed and operating to operate the
System on an on-going basis and to fulfill the responsibilities
of the on-board television coordinator (as described on Exhibit C
attached hereto) for so long as this Agreement shall be in effect
with respect to that Ship. SeaVision hereby acknowledges that
the Manager shall at all times be an employee of SeaVision. NCL
hereby agrees to serve as SeaVision's paying agent for payment,
at the direction of SeaVision, of all salary, payroll taxes and
fringe benefits costs in connection with the Manager; provided
that SeaVision promptly reimburses NCL for all such costs
incurred by NCL. SeaVision understands that, while on-board any
Ship, its personnel will be subject to the authority of the
Master of that Ship and the officer(s) designated to oversee the
operation of the System and the Services. SeaVision agrees that
its employees will be considered seamen and will attend and
participate in boat drills held onboard each of the respective
Ships as requested by the Ship's master and officers. All such
employees shall attend Coast Guard inspections and, if required
by NCL, will earn life boat efficiency certificates. SeaVision
shall employ onboard the Ships only those persons medically fit
for service onboard the vessels in accordance with standards
established by NCL and who have agreed to abide by the orders of
the masters and officers for service onboard the Ships. It shall
be the sole
-2-
responsibility of SeaVision to absorb and pay the costs of pre-
employment physical examinations and to employ persons who have
valid passports, visas and all other permits required by any
governmental authority in order that they might enter and leave
the ports of call of the Ship on which they are employed. Annual
physicals shall be required of SeaVision's shipboard employees.
(iii) Upgrade the hardware and/or software used in the System, at no
cost to NCL, at such times and in such manner as is reasonably
necessary or appropriate, to maintain the System on the Ship,
subject always, in the case of hardware upgrades only, to the
consent of NCL, which consent shall not unreasonably be withheld,
and to the constraints placed thereon by the space available on-
board any Ship for the installation of such hardware.
(b) Subject to the terms and conditions hereof, NCL hereby agrees to:
(i) Make available to SeaVision in respect of any Ship upon which the
System is then installed or is then to be installed (a) that Ship
to the extent necessary for SeaVision's operation and maintenance
of the System, including but not limited to granting SeaVision
personnel unlimited access to the television studio and video
distribution system on board that Ship, (b) such personnel as are
reasonably necessary or appropriate to support SeaVision's
successful operation and maintenance of the System, including but
not limited to appropriate on-board support for and oversight of
the operation and maintenance of the System by a designated
officer on that Ship, provided, however, that (i) SeaVision shall
at all times be primarily responsible for the operation and
maintenance of the System, and (ii) NCL shall not be obligated
hereunder to make available NCL's personnel if and to the extent
that the result thereof would be the interference with that
personnel's ability to perform his or her other employment duties
owing to NCL, (c) all necessary systems integration support to
allow the System to communicate with NCL's on-board systems, and
(d) appropriate accommodations on-board that Ship for SeaVision
personnel who are engaged in operating or maintaining the System
on the Ship, which accommodations shall be comparable to those
accommodations provided by NCL to [Redacted - confidential
treatment requested]. It is understood that SeaVision personnel
occupying such accommodations will, at all times while on-board
such Ship, be subject to NCL's policies regarding on-board
contractors, including those concerning dress, decorum and
personal behavior.
-3-
(ii) Furnish accommodations on-board each Ship upon which the System
is then installed and otherwise respond favorably to reasonable
requests by SeaVision's management for accommodations on-board
such Ship, on mutually-agreeable dates and subject to
availability, to allow SeaVision senior personnel to monitor the
on-going performance of the System and SeaVision's personnel and
for the purpose of determining whether enhancements and
improvements to the System should be recommended. Requests for
such accommodations shall not exceed one (1) cabin/voyage per
month per Ship. NCL shall also provide the Manager with all
other perquisites that it provides to [Redacted -confidential
treatment requested].
(iii) Provide marketing support for the System on-board each Ship on
which the System is then installed, which support shall be
consistent with the type and level of such support being provided
by NCL as of the date hereof on-board the Initial Ship. In
addition thereto, the parties shall engage in such other
activities of a supporting nature as are acceptable to both
parties to this Agreement, and upon terms acceptable to both
parties to this Agreement.
(iv) Work with SeaVision's marketing personnel to develop appropriate
and effective means for testing and gauging passenger reaction to
the System on a regular basis. Such means shall include but not
be limited to on-board questionnaires, on-board focus groups,
one-on-one passenger interviews and post-cruise questionnaires.
SeaVision shall retain the right to designate the individuals who
will conduct these activities, subject to the approval of such
individuals by NCL. If SeaVision marketing personnel are not
available (or cannot reasonably be accommodated) on a Ship, the
Manager on that Ship may assume these responsibilities.
(v) Provide access to each Ship when such Ship is in port, for
SeaVision personnel to demonstrate the System to potential
advertisers, marketers and clients. In connection with making
such demonstrations, SeaVision shall conform to NCL's procedures
for approving on-board visitors, including but not limited to
making advance requests for boarding passes.
(vi) Use commercially reasonable efforts to cause its on-board
concessionaires to work with SeaVision to develop mutually
beneficial applications for the System.
(vii) Provide the Manager with the following data, if available, in
electronic form (i.e., diskettes, tapes or other similar means)
with respect to each
-4-
passenger on-board any Ship on which the System is then
installed: name, home address and telephone number, age, cabin
assignment, dining assignment and on-board account number.
(viii) Collect all monies paid or payable by passengers in respect of
Services provided on or through the System and charged to the
respective on-board account of such passengers.
(ix) Provide without change limited and reasonable on-board medical
care as needed for minor illnesses and injuries to the extent
such treatment can be provided on-board the Ship. NCL shall not
be responsible hereunder for on-shore continuing or follow-up
treatment.
2. Term/Extension to Other Ships.
-----------------------------
(a) Unless sooner terminated in accordance with the terms of this
Agreement, the term of this Agreement (the "Term") shall commence on
the date first written above and shall expire on [Redacted -
confidential treatment requested] (the "Expiration Date").
(b) NCL hereby grants to SeaVision the exclusive right, for the Term of
this Agreement, to install, operate and maintain all in-cabin
interactive television systems and any kiosk-based interactive
television systems connected to such in-cabin systems on the M/S
Dreamward and the S/S Norway.
(c) (i) If, during the term of this Agreement, NCL wishes to install or
have installed interactive television and video entertainment
services on-board any ship owned or operated by NCL other than
the M/S Dreamward and the S/S Norway, NCL shall, in each such
instance, [Redacted - confidential treatment requested].
(ii) If, in respect of any ship, [Redacted - confidential treatment
requested] to provide onboard that ship interactive television
and video entertainment services during the term of this
Agreement, NCL shall [Redacted - confidential treatment
requested]. SeaVision shall thereafter have [Redacted -
confidential treatment requested]. If SeaVision [Redacted -
confidential treatment requested], NCL shall thereafter be
precluded from accepting such third party offer. If SeaVision
[Redacted - confidential treatment requested] as provided herein,
NCL may, [Redacted - confidential treatment requested]
(iii) NCL and SeaVision each understands and agrees that the other
party is not required hereunder [Redacted - confidential
treatment requested], including without limitation [Redacted -
confidential treatment
-5-
requested]. Subject to the foregoing provisions of this Section
2(c), in the event the parties agree that SeaVision will install,
operate and maintain the System on any additional Ship(s), the
references herein made to a or any Ship and/or the System shall
be deemed to include such other Ship(s) and the System(s)
installed thereon, which such modifications as are reasonably
necessary and appropriate to reflect the individualized System(s)
installed on each such Ship and are consistent with the agreement
of the parties in respect thereto.
3. Revenue-Sharing and Payment Terms.
---------------------------------
(a) In consideration of SeaVision's agreement to provide televisions on
the S/S Norway, SeaVision shall be entitled to receive [Redacted -
confidential treatment requested] of the Adjusted Gross Revenues (as
defined below) generated by all of the Systems installed onboard the
Ships. If SeaVision has not received under this subsection 3(a) the
aggregate amount of [Redacted -confidential treatment requested], NCL
shall pay to SeaVision [Redacted -confidential treatment requested],
whereupon SeaVision shall not be entitled to receive any further funds
under this subsection 3(a).
(b) If the aggregate of all of the Adjusted Gross Revenues generated by
all of the Systems installed on-board the Ships, from the commencement
of this Agreement, is less than the amount [Redacted - confidential
treatment requested], then NCL shall be entitled to retain five
percent (5%) of the Adjusted Gross Revenues for the applicable
calendar month, as indicated on the applicable report provided to NCL
by SeaVision pursuant to the terms of subsection 3(e) below, and shall
promptly remit [Redacted - confidential treatment requested] of such
Adjusted Gross Revenues to SeaVision in accordance with this Section
3. (For purposes of this subsection 3(b), the relevant Adjusted Gross
Revenues are the cumulative Adjusted Gross Revenues from the date of
this Agreement to the relevant month-ending date of such calculation;
such Adjusted Gross Revenue calculation is not performed on an annual
---
basis.)
(c) If the aggregate of all of the Adjusted Gross Revenues generated by
all the Systems on board the Ships, from the commencement of this
Agreement, [Redacted - confidential treatment requested], then, for
the twelve month period commencing on the date [Redacted -
confidential treatment requested] and for each succeeding twelve month
period [Redacted -confidential treatment requested] the Adjusted Gross
Revenues generated by all of the Systems installed onboard the Ships
shall be allocated between the parties as follows:
-6-
(i) NCL shall be entitled to retain [Redacted - confidential
treatment requested] of, and shall pay over to SeaVision
[Redacted -confidential treatment requested] of such Adjusted
Gross Revenues;
(ii) NCL shall be entitled to retain [Redacted - confidential
treatment requested] of, and shall pay over to SeaVision
[Redacted -confidential treatment requested], such Adjusted Gross
Revenues [Redacted - confidential treatment requested]; and
(iii) NCL shall be entitled to retain [Redacted - confidential
treatment requested] of, and shall pay over to SeaVision the
remaining [Redacted - confidential treatment requested] of, such
Adjusted Gross Revenues in excess of [Redacted - confidential
treatment requested].
(d) "Adjusted Gross Revenues", for purposes of this Agreement, shall mean
the aggregate of all amounts paid to NCL in connection with
passengers' use of the Services provided by or on the System and
charged to such passengers' respective on-board accounts by NCL, other
than amounts paid or payable in respect of [Redacted - confidential
treatment requested], less (i)(A) the cost to SeaVision of goods sold
in the case of products and services sold on the System, (B) the cost
to SeaVision of pay-per-view programming provided on the System, and
(C) the commissions paid by SeaVision to third parties for advertising
sold on the System, the aggregate amount of which NCL shall pay over
to SeaVision, and (ii) credits paid by NCL to passengers in the case
of gaming on the System.
(e) On or before the twenty-first day of each calendar month during the
Term of this Agreement, SeaVision shall provide NCL with a written
report detailing the Adjusted Gross Revenues generated by the System
on each Ship on which the System is then installed from cruises
completed during the prior calendar month. This report shall govern
the determination of fees to be retained by NCL and the revenues to be
remitted by NCL to SeaVision under the terms of this Agreement.
SeaVision shall provide any and all hardware and/or software
reasonably necessary or appropriate to interface SeaVision's
accounting software with the Ship's property management system in
order for SeaVision to obtain accurate accounting information for such
reports.
(f) Within ten (10) days after NCL's receipt of any monthly report
delivered to NCL by SeaVision pursuant to the terms of subsection 3(e)
herein, NCL shall remit to SeaVision all Adjusted Gross Revenues
generated by the System on the Ship during the calendar month
applicable to such report, less its share of such Adjusted Gross
Revenues as provided in this Section 3.
-7-
(g) NCL shall promptly notify SeaVision of any changes, adjustments or
chargebacks (relative to the Adjusted Gross Revenues in respect of any
calendar month) of which NCL receives notice after it has made a
remittance to SeaVision in respect of such calendar month, and
together therewith, provide to SeaVision appropriate documentation
supporting all such changes, adjustments or chargebacks. In the event
properly-supported changes, adjustments or chargebacks result in a
reduction of the Adjusted Gross Revenues generated in respect of such
calendar month, SeaVision shall, within thirty (30) days after its
receipt of the applicable notice and supporting documentation, refund
to NCL SeaVision's percentage of the aggregate of such changes,
adjustments or chargebacks.
4. Confidentiality.
---------------
(a) NCL acknowledges that the System represents and will continue to
represent the valuable, confidential and proprietary property of
SeaVision. SeaVision is not by this Agreement conveying to NCL any
exclusive proprietary or ownership rights in the System, including,
but not limited, to any patent, copyright, trademark, service xxxx,
trade secret, trade name or other intellectual property rights, except
that NCL will have the limited rights expressly set forth in this
Agreement. Accordingly, NCL acknowledges that, except as expressly
provided for in this Agreement, NCL possesses no title to or ownership
of any System or any portion thereof. NCL will keep the System free
and clear of all claims, liens and encumbrances resulting from actions
or omissions of NCL.
(b) Each party agrees, during the Term of this Agreement and thereafter,
to maintain the confidential nature of the terms and conditions of
this Agreement and of any proprietary information shared by the other
with it. In the case of SeaVision's proprietary information, such
proprietary information shall include, but is not limited to (i) any
knowledge gained by NCL of SeaVision's proprietary application
software or the configuration of the System; (ii) SeaVision's
marketing and sales materials; (iii) the format of any and all
SeaVision reports, including those for data management, revenue
remittance and marketing surveys, to the extent protected by copyright
law; and (iv) SeaVision's marketing and advertising client list. In
the case of NCL's proprietary information, such proprietary
information shall include, but is not limited to, the data provided by
NCL to SeaVision pursuant to the terms of subsection 1(b)(vii) hereof,
except for any such data in respect of; any passenger who purchases
merchandise from SeaVision through the System, which data shall not be
NCL's proprietary information. Notwithstanding anything contained in
this Agreement to the contrary, the terms of this Section 4(b) shall
survive the expiration or termination of this Agreement.
-8-
(c) Each party acknowledges that its violation of its confidentiality or
non-disclosure obligations under this Agreement may cause irreparable
damage to the other that cannot be fully remedied by money damages.
Accordingly, in the event of any such violation or threatened
violation, the injured party will be entitled, in addition to pursuing
any other remedy available to it under this Agreement or at law, to
obtain injunctive or other equitable relief from any court of
competent jurisdiction as may be necessary or appropriate to prevent
any further violations thereof.
(d) Each party agrees to notify the other immediately upon the notifying
party's becoming aware of or reasonably suspecting the possession, use
or knowledge of all or part of any of the other party's proprietary
information by any person or entity not authorized by this Agreement
to have such possession, use or knowledge. The notifying party will
promptly furnish the other party with details of such possession, use
or knowledge, will assist in preventing a recurrence thereof and will
cooperate with the other party in protecting the other party's rights
in the other party's proprietary information. A party's compliance
with the terms of this Section 4 will not be construed as any waiver
of the other party's right to recover damages or obtain other relief
against the notifying party for the notifying party's breach of its
confidentiality or non-disclosure obligations under this Agreement or
the negligent or intentional harm to the other party's proprietary
rights.
5. Termination.
-----------
(a) NCL shall have the right to terminate this Agreement prior to the
Expiration Date in the event the System fails to achieve the technical
performance standards set forth in Exhibit D attached hereto. NCL may
not exercise this right (i) if such technical failure occurs as a
result of NCL's failure to perform any or all of its obligations under
the terms of this Agreement; and (ii) without written notice to
SeaVision of its intention to do so and prior to a period of 90 days
following such notice in which SeaVision may effect a cure of such
failure. In respect of any notice hereunder by NCL of its intention
to terminate this Agreement as a result of any System deficiency which
served as the basis for any prior such termination notice, NCL shall
be obligated, in the case of the second such notice, to extend to
SeaVision a thirty-day cure period rather than a ninety-day cure
period and NCL shall not be obligated, in the case of the third or any
subsequent notice, to extend to SeaVision any cure period whatsoever.
SeaVision shall, within fifteen (15) days following NCL's written
notice to SeaVision under such clause (iii), above, provide to NCL
SeaVision's written response regarding such failure, which response
shall set forth SeaVision's assessment of the cause of such failure
and SeaVision's plan to rectify such failure. In any event, SeaVision
shall make a good faith effort to rectify such failure as promptly as
is reasonable under the circumstances
-9-
and, where appropriate, will implement temporary "work around"
solutions until a permanent solution can be implemented.
(b) SeaVision shall have the right to terminate this Agreement in whole or
in part prior to the Expiration Date in the event the System fails to
achieve the financial performance standards that SeaVision shall
determine are necessary to warrant its investment in the System. In
the event SeaVision intends to terminate this Agreement pursuant to
this subsection 5(b), it shall do so in writing to NCL no less than
one hundred twenty (120) days prior to ceasing operations hereunder or
thereon, as the case may be.
(c) Either party hereto shall have the right to terminate this Agreement
immediately upon written notice to the other party upon such party
being declared insolvent or bankrupt, or making an assignment for the
benefit of creditors, or in the event that a receiver is appointed, or
any proceeding for appointment of a receiver or to adjudge such party
a bankrupt, or to take advantage of the insolvency laws is demanded
by, for, or against such party under any provision under the laws of
any state or country.
(d) NCL shall have the right to terminate this Agreement prior to the
Expiration Date in the event SeaVision defaults in the performance of
any covenant, warranty or agreement made herein (except a failure by
the System to achieve certain technical performance standards which is
governed by subsection 5(a) herein), and such default has not been
cured within thirty (30) days after receipt of written notice thereof
given by NCL to SeaVision.
(e) SeaVision shall have the right to terminate this Agreement prior to
the Expiration Date in the event NCL defaults in the performance of
any covenant, warranty or agreement made herein and such default has
not been cured within thirty (30) days after receipt of written notice
thereof given by SeaVision to NCL.
(f) Notwithstanding the termination or expiration of this Agreement as
provided for in this Section 5 and elsewhere in this Agreement, NCL
shall continue to owe, and shall promptly pay to SeaVision in
accordance with the terms of Section 3 hereof, all amounts set forth
in Section 3 that shall have accrued on and prior to the date of such
termination or expiration.
(g) As soon as is practicable after the expiration or any termination of
all or part of this Agreement or any renewal operating term thereof,
SeaVision shall remove the System, including all hardware and
software, and all on-board SeaVision personnel from the Ship. The
parties hereby agree and acknowledge that in accordance with Section 1
hereof, SeaVision will retain title to any and all hardware and
software installed on board the Ship by
-10-
SeaVision (x) at all times while this Agreement or any renewal
operating term thereof is in effect as well as (y) in the event
SeaVision chooses not to continue operating the System installed
thereon. Notwithstanding the foregoing, if SeaVision elects to
terminate this Agreement for any of the reasons set forth above, NCL
shall have the right to (i) purchase all SeaVision hardware (but not
software) installed by SeaVision on any Ship, including but not
limited to [Redacted - confidential treatment requested], at an
aggregate purchase price equal to [Redacted - confidential treatment
requested] and (ii) obtain a nontransferable license to use (but only
on the applicable Ship) the SeaVision software installed by SeaVision
on that Ship [Redacted -confidential treatment requested].
6. Right to Inspect Books & Records. SeaVision and NCL shall keep full
--------------------------------
and accurate accounts, records, books, journals, ledgers and data (collectively,
"Records") with respect to the business done by each party respectively under
this Agreement, which Records shall at all times show truthfully, accurately and
fully the compliance by each party with its respective obligations under this
Agreement. Each party shall have the right, through its designated
representatives, at all reasonable times, upon reasonable advance notice, to
inspect the Records of the other as necessary to verify the sales, revenues
generated and fees collected pursuant to this Agreement. The parties shall
retain all Records at all times during the Term of this Agreement and any and
all extensions or renewals thereof, and for at least three (3) years thereafter,
and shall make the Records available to the other party during regular business
hours, wherever the Records are maintained, within ten (10) days after receipt
of demand for inspection from such other party. Both parties shall maintain the
confidential nature of any Records so inspected pursuant to and in accordance
with the provisions of Section 4 hereof.
7. Insurance/Waiver of Subrogation.
-------------------------------
(a) So long as their respective insurers so permit, neither party hereto
shall be liable to the other, or to the insurer of the other, claiming
by way of subrogation through or under such other party with respect
to any loss or damage, in whole or in part, to the System on any Ship,
to the extent that such other party shall be reimbursed out of that
party's insurance coverage carried for such other party's protection
with respect to such loss or damage. If so permitted, the parties
shall each obtain any special endorsements required by their
respective insurance carriers to evidence compliance with the waiver
and release set forth herein and shall provide a copy thereof to the
other party.
(b) SeaVision hereby warrants, represents and covenants that, consistently
during the Term and at its sole expense, each Manager and each member
of SeaVision's System installation crews shall be included on
SeaVision's protection and indemnity cover and shall be covered by
general medical
-11-
insurance maintained by SeaVision, in each case for such periods of
time as the Manager or such crew member is posted to a Ship.
8. Interruption in Performance. Neither NCL nor SeaVision shall be
---------------------------
liable to the other for any loss, damage or loss of profits arising out of any
interruption or cessation of the Services to be provided hereunder when such
interruption or cessation is caused by any circumstance beyond the reasonable
control of such party.
9. Indemnification.
---------------
(a) SeaVision shall indemnify, defend and hold harmless NCL and its
successors and assigns from and against any and all liabilities,
claims, suits, damages, judgments, awards, penalties, losses and other
liabilities (including all related reasonable attorneys' fees, costs
and expenses in connection therewith) (collectively referred to
hereinafter as "Losses") suffered or incurred by NCL by reason of,
arising out of or in connection with (i) any negligent, willful or
intentional act or omission of SeaVision (or an employee, agent or
representative of SeaVision) committed or omitted, as the case may be,
in the course of SeaVision's performance of the terms of this
Agreement or (ii) SeaVision's failure to fully perform the terms of
this Agreement.
(b) NCL shall indemnify, defend and hold harmless SeaVision and its
successors and assigns from and against any and all Losses suffered or
incurred by SeaVision by reason of, arising out of or in connection
with (i) any negligent, willful or intentional act or omission of NCL
(or an employee, agent or representative of NCL) committed or omitted,
as the case may be, in the course of NCL's performance of the terms of
this Agreement or (ii) NCL's failure to fully perform the terms of
this Agreement.
10. Further Assurances of SeaVision's Title.
---------------------------------------
(a) NCL hereby agrees to execute and deliver to SeaVision, upon the
request of SeaVision from time to time, such UCC-1 financing
statements and other documents as SeaVision shall reasonably require
for the purpose of evidencing to NCL and any third party SeaVision's
continued ownership of all components (hardware and software) of the
System (such financing statements and other documents to describe all
such components and to be in the form required by applicable law).
(b) SeaVision may affix permanent (to the degree reasonably possible),
legible and visible labels on each component of the System (hardware
only), to the extent that doing so is reasonably possible or
practicable. Each such label may clearly indicate that SeaVision
holds title to the component to which that label is affixed.
-12-
11. Limitation of Liability. THE WARRANTIES AND REMEDIES EXPRESSLY SET
-----------------------
FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES
AND REMEDIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR
ELSEWHERE IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF NCL'S USE
OF OR INABILITY TO USE THE SYSTEM OR ANY PORTION THEREOF OR FROM ANY DELAY IN
THE SYSTEM ACHIEVING THE TECHNICAL PERFORMANCE STANDARDS OR FROM ANY DELAY IN
THE SYSTEM MEETING, OR ANY INABILITY OF THE SYSTEM TO MEET, EITHER PARTY'S
EXPECTATIONS WITH RESPECT TO OPERATIONS OR PERFORMANCE, EVEN IF SUCH PARTY IS
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION THERETO, SEAVISIONS'
LIABILITY FOR DIRECT DAMAGES OF NCL ARISING OUT OF ANY OF THE FOREGOING SHALL IN
NO EVENT EXCEED THE AMOUNT OF [REDACTED - CONFIDENTIAL TREATMENT REQUESTED];
PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATION SHALL NOT BE APPLICABLE TO
DAMAGES RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SEAVISION
OR ITS EMPLOYEES. IN PARTICULAR, SEAVISION IS NOT RESPONSIBLE FOR ANY COSTS
INCLUDING, BUT NOT LIMITED TO, THOSE INCURRED AS A RESULT OF LOST PROFITS OR
REVENUE, LOSS OF USE OF THE SYSTEM, LOSS OF DATA, THE COST OF RECOVERING ANY
DATA, THE COST OF SUBSTITUTE SOFTWARE, OR CLAIMS BY THIRD PARTIES.
12. Sale or Disposal of a Ship. In the event that NCL elects to sell or
--------------------------
otherwise dispose of any Ship upon which the System is then installed, NCL
promptly shall notify SeaVision in writing of its decision. Upon the sale of
any such Ship, the new owner shall have the option of assuming this Agreement
with respect to that Ship. If the new owner of such Ship elects not to assume
this Agreement in respect of that Ship or in the event NCL is disposing of such
Ship other than through a sale or transfer (i.e., decommissioning), SeaVision
promptly shall [Redacted - confidential treatment requested], and NCL shall
[Redacted - confidential treatment requested] in the case of the S/S Norway),
plus the aggregate of [Redacted - confidential treatment requested] by SeaVision
[Redacted -confidential treatment requested], less the aggregate of [Redacted -
confidential treatment requested]. For purposes of determining [Redacted -
confidential treatment requested], the initial value of the System shall be
[Redacted - confidential treatment requested] in the case of the S/S Norway),
which value shall [Redacted - confidential treatment requested], and to which
shall be added [Redacted - confidential treatment requested], which new
additional amounts also [Redacted - confidential treatment requested].
-13-
13. Public Announcements. The parties shall consult with each other and
--------------------
issue a public statement with respect to this Agreement as soon as is practical
after the date hereof. During the term of this Agreement, NCL shall include a
reference to SeaVision in any and all public announcements or marketing
materials referring to interactive television services on-board the Ships.
14. Right to Make Agreement. Each of the parties hereto represents and
-----------------------
warrants to the other that it has all necessary and appropriate power and
authority to execute, deliver and carry out the terms and provisions hereof.
15. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute but one and the same original document.
16. Assignment. Either party hereto may assign this Agreement and its
----------
respective rights, interests and obligations hereunder to any third party
without the consent of the other party hereto; provided, however, that no such
assignment by a party shall relieve that party of any of its liabilities or
obligations hereunder. It is expressly understood and agreed that this
Agreement and all of SeaVision's interests and rights herein and hereunder may
be assigned, pledged, mortgaged and/or hypothecated by SeaVision at its
exclusive discretion to any third party purchasing all or substantially all of
SeaVision's assets, provided that such assignee agrees in writing to assume all
of SeaVision's obligations under this Agreement.
17. Successors. This Agreement shall inure to the benefit of, and be
----------
binding upon, the respective successors and assigns of the parties hereto.
18. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Florida, without regard to its
principles of conflicts of laws.
19. Severability. If any Section or provision of this Agreement, or any
------------
portion of any Section or provision thereof, shall for any reason be held to be
void, illegal or otherwise unenforceable, all other Sections and portions of
this Agreement shall nevertheless remain in full force and effect as if such
void, illegal or unenforceable portion had never been included herein.
20. Notices. All notices and other communications required or otherwise
-------
provided for in this Agreement shall be in writing and sent by registered or
certified mail to:
If to SeaVision: SeaVision, Inc.
000 Xxxxxxxxx Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
-14-
If to NCL: Norwegian Cruise Line Limited
0 Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
or to such other place as SeaVision or NCL, as the case may be, may from time to
time designate in accordance herewith.
21. Entire Agreement; Modification. This Agreement, including the
------------------------------
Exhibits attached hereto, contains the entire agreement of the parties on the
subject matter hereof, and supersedes any and all prior agreements, if any, with
respect to such subject matter. This Agreement may not be changed, modified or
supplemented except by the written agreement of the parties.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date first above written.
ATTEST: SEAVISION, INC.
----------------------------------- By:
-----------------------------------
Its: Its:
------------------------------- -----------------------------------
ATTEST/WITNESS: NORWEGIAN CRUISE LINE LIMITED
By:
----------------------------------- ------------------------------------
Its: Its:
------------------------------- -----------------------------------
[Signature page to Agreement dated as of August 12, 1996 by and between
SeaVision, Inc. and Norwegian Cruise Line Limited]
-15-
EXHIBIT A
Primary Hardware and Software Components of the System
to be provided by SeaVision
[Redacted - confidential treatment requested]
EXHIBIT B
I. Entertainment and Interactive Services to be Provided by SeaVision
------------------------------------------------------------------
"Basic" SeaVision Package: Services Provided at No Charge
---------------------------------------------------------
. In-Cabin Room Service Ordering: Passengers will be able to order
NCL's standard room service menu, including beverages charged to their
cabin account, through the System. Orders will be printed out in
appropriate pantries and/or galleys for delivery by NCL personnel.
SeaVision shall provide, as part of the System, printers and/or
monitors to be used in such pantries and/or galleys for such purpose.
. Shore Excursion Ordering: Passengers will be able to watch videos of
shore excursions and purchase tickets for shore excursions on and
through the System by using their television remote-control. Orders
will be printed out in the Shore Excursion Office of the Ship, with
tickets in respect thereof to be delivered by NCL personnel. The
System will provide appropriate inventory control.
. Wine Ordering: Passengers will be able to view a wine menu on the
System and order their selection with their television remote-
controls. Orders will be printed out in the Wine Xxxxxxx'x office or
wine cellar, for delivery by NCL personnel at the designated meal.
Cabin accounts will be charged accordingly.
NCL shall be responsible for providing all ticket stock, videos and
photographs for shore excursions and wine ordering. NCL may choose,
at its option, to produce its own videos and photographs, retain
SeaVision for this purpose and reimburse SeaVision for all its costs
incurred in connection with producing the same, or contract with a
third party to produce such videos and/or photographs, provided,
however, that any videos and photographs produced by any such third
party shall in all ways meet SeaVision's technical standards for use
on the System. If NCL elects to have SeaVision produce any such
videos or photographs, SeaVision shall provide NCL with detailed cost
estimates prior to the initiation of video and photograph production.
Such estimates will include the cost of pre-production scripting and
preparation and the cost of sending crews aboard NCL's Ships for
taping, photographing and post-production editing. NCL shall pay
these costs directly to SeaVision as a vendor. Each party shall make
its library of videos and photographs for shore excursions available
to the other for the other's use in connection with the conduct of its
business.
. Interface with NCL's Property Management System: The System will
interface with the Ship's property management system to enable
appropriate charges to be applied to passenger accounts.
. Access Control: The System will be designed to limit access to only
those persons who are adult passengers or who are minors under adult
supervision. Passengers will be able to limit access to various
services, such as gaming and adult programming, by enabling lock-out
codes and using password procedures.
. Report Generation: The System will generate detailed activity
reports, which will be made available to NCL for the purposes of
revenue payments to SeaVision. SeaVision shall also provide, at NCL's
request, reports pertaining to passenger usage of the System.
. Passenger Folio Review-On-board Account: Each passenger will be able
to use the System to review a summary of his or her account.
SeaVision shall provide the interfaces to NCL's on-board systems
necessary to provide such review; provided that NCL shall reasonably
cooperate with the development of such interfaces.
. Transaction Fee: In consideration of SeaVision's provisions of
certain services on the System at no charge, NCL agrees to consider
the implementation of a transaction fee of not more than $1.00 per
transaction initially for passengers utilizing the System for shore
excursions, room service, wine ordering and other non-revenue
generating passenger services. Any such transaction fees will be
included in the Adjusted Gross Revenue generated by the System.
Revenue-Generating and Pay-Per-View Entertainment
-------------------------------------------------
NOTE: NCL will be entitled to a portion of the Adjusted Gross Revenues generated
by the following services, pursuant to and in accordance with the terms of
Section 3 of the Agreement.
. Video-on-Demand: Passengers will be able to purchase movies and other
entertainment options such as taped concerts, on demand, using the
System and their television remote-control. SeaVision shall determine
the fee that will be levied for each such order and charged to such
passengers' respective cabin accounts. Subject to NCL's approval,
adult programming may be offered.
. Gaming Options: Passengers will be able to play video slots, poker
and blackjack on the System. Any additional games that SeaVision may
desire to provide on the System shall be subject to the parties'
mutual agreement. SeaVision will determine the value of each
individual credit that passengers
may purchase and charge to their cabin accounts. Credits may be
redeemed at a location designated by NCL.
. Shopping: SeaVision will offer passengers shopping videos and
interactive video shopping on and through the System. NCL will retain
the right to approve the items offered for sale and the vendors
providing those items. In the event NCL elects to offer its own items
for sale on and through the System, NCL shall pay all related
production costs incurred by SeaVision directly to SeaVision as a
vendor and SeaVision will be entitled to a share of the Adjusted Gross
Revenues generated therefrom pursuant to and in accordance with the
terms of Section 3 of the Agreement. Access to the System by
concessionaires on board the Ship, including but not limited to the
on-board shops, casino, beauty salon and spa, and photographer, will
be by mutual agreement between SeaVision and those vendors. NCL will
be entitled to a portion of the Adjusted Gross Revenues generated by
any fees paid by such purveyors, pursuant to and in accordance with
the terms of Section 3 of the Agreement.
. Advertising and Promotions: SeaVision shall have the exclusive
right to provide access to the System to third parties for the
purposes of advertising, promotions and marketing of their companies,
products or services.
NCL shall retain the right to approve such third party advertisers as
will be given access to the System and the manner in which any such
advertising is presented. NCL shall designate the individual
responsible for granting such approvals on its behalf, and such
individual shall provide SeaVision with general guidelines for
advertising and marketing activities and the procedure SeaVision shall
follow in submitting advertising and marketing proposals for NCL's
consideration. NCL shall not unreasonably withhold its approval of
advertising and marketing proposals with respect to the System. NCL
shall notify SeaVision of its approval or denial of an advertising or
marketing proposal within 14 days after SeaVision's written submission
thereof. In the event NCL fails to notify SeaVision of its decision
within that period, it shall be deemed to have approved that written
submission. NCL will be entitled to a portion of the Adjusted Gross
Revenues generated by such advertising and marketing promotions on the
System, pursuant to and in accordance with the terms of Section 3 of
the Agreement.
Miscellaneous Optional Services (to be offered only upon mutual agreement of the
-------------------------------
parties)
. Digital Photography: Passengers will be able to view in their cabins
personal photographs taken by the on-board photo concessionaire. The
system will display the photographs allowing the passengers to
purchase a variety of sizes and poses. This service can include,
subject to NCL approval, kiosk-based
applications which will provide an entertaining and easy-to-use
graphical, touch screen interface to purchase "instant" photographs
with a wide variety of backgrounds and in various sizes. Revenues
from photographs purchased over the System, less cost of materials,
will be included in Adjusted Gross Revenues.
EXHIBIT C
On-board Television Coordinator Responsibilities
------------------------------------------------
[to be provided by NCL]
EXHIBIT D
Technical Performance Standards of the System
---------------------------------------------
[Redacted - confidential treatment requested]
