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EXHIBIT 10.9
TRADEMARK LICENSE AGREEMENT
This Agreement is made and entered into as of May 1, 2000, by
andbetween XXXXXXXX XXXXXXXXX, INC. ("Hallmark") and ODYSSEY HOLDINGS L.L.C.
("Odyssey").
WHEREAS, Hallmark is the owner of the trademarks "Hallmark
Entertainment" (the "Entertainment Xxxx") and "Hallmark Hall of Fame" (the "Hall
of Fame Xxxx") (collectively, Entertainment Xxxx and Hall of Fame Xxxx shall be
the "Licensed Marks") in the United States; and
WHEREAS, Odyssey desires to use the Licensed Marks on the terms and
subject to the conditions specified herein; and
WHEREAS, Hallmark desires to permit Odyssey to use the Licensed Marks
subject to the terms and conditions herein provided, and not otherwise.
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, the parties hereto agree as follows:
1. Service. The "Service" shall mean the distribution of a channel (or
a network presenting a channel) of high-quality family oriented television
programming of a characteristic, nature and quality consistent with the image of
Hallmark Cards, Incorporated ("Hallmark Cards"), including that programming
acquired pursuant to that certain Program License Agreement dated as of November
13, 1998 by and between Odyssey and Hallmark Entertainment Distribution Company
(the "Program Agreement").
2. Grant. Subject to the terms and conditions of this Agreement,
Hallmark hereby grants to Odyssey:
a. The non-exclusive, royalty-free license to use the
Entertainment Xxxx as part of the tag line, "A Xxxxxx and Hallmark
Entertainment Network," adjacent to the Odyssey brand in connection
with the promotion, sale and distribution of the Service, so long as
Hallmark Cards directly or indirectly has voting control of Odyssey and
provided that the Service continues to consist of high-quality family
oriented programming.
b. The non-exclusive, royalty free license to use the Hall of
Fame Xxxx in the United States solely in connection with the program
title "THE COLLECTION - from the library of the Hallmark Hall of Fame"
or such other title as may be approved by Hallmark from time to time
for a time period regularly showing pictures previously broadcast as
Hallmark Hall of Fames.
c. The non-exclusive royalty free license to use the
Entertainment Xxxx in the United States in connection with the
promotion and distribution of
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movies acquired by Odyssey pursuant to the Program Agreement and
constituting part of the Service.
3. Limitations.
Licensee agrees that it will not use the Licensed Marks other
than as specifically set forth in Section 2. In no event shall Odyssey
be permitted to use the name "Hallmark" alone or combined with any
other name except as herein provided or approved in advance in writing
by the Branding Committee (hereinafter defined) or to abbreviate,
shorten or otherwise alter the Licensed Marks nor shall it be permitted
to emphasize "Hallmark" in different size, format, or boldness than the
balance of the Licensed Marks. Odyssey agrees to that it will not use
the Licensed Marks in its corporate name. Odyssey further agrees that
it shall not enter into any agreements with third parties committing
Odyssey to use the Licensed Marks beyond the term of this Agreement.
4. Standards.
a. Odyssey acknowledges its familiarity with the high
standards of quality and guidelines maintained by Hallmark for the use
of the Licensed Marks and the name "Hallmark," and Odyssey agrees to
faithfully maintain these same standards in connection with its
programming of the Service, including but not limited to complying with
the broadcast standards set forth on Schedule A, as amended by Hallmark
from time to time and to provide high-quality family oriented
television programming. Furthermore, Odyssey agrees to comply with any
guidelines or rules for use of the Licensed Marks as Hallmark may in
its sole discretion, from time to time, promulgate in order to protect
the quality image and reputation which the Licensed Marks and the name
"Hallmark" presently enjoy and such guidelines or rules shall be
incorporated herein as a part of this Agreement.
b. Odyssey acknowledges that Hallmark Cards was founded in
1910, is a privately owned company which enjoys a stellar reputation
for excellence, quality, adherence to high ethical and moral values,
and whose brand "Hallmark" consistently rates in the top ten brands in
the U.S. for consumer recognition, consumer trust and quality. Further,
"Hallmark Hall of Fame" productions have won 78 Emmys over the past 40
years. Odyssey further acknowledges that Hallmark would not grant this
trademark license (i) if its parent company, Hallmark Cards did not
control Crown Media Holdings, Inc., the parent company of Odyssey and
(ii) unless Hallmark Cards also controlled its wholly owned
subsidiaries, Hallmark Entertainment, Inc., Hallmark Entertainment
Productions, LLC and Hallmark Entertainment Distribution, LLC, which
produce and distribute the pictures provided under the Program
Agreement in connection with which this license is granted.
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c. Odyssey agrees to designate an individual at Odyssey's
expense who will be responsible for monitoring the use of the Licensed
Marks and ensuring that the Licensed Marks are utilized in accordance
with this Agreement and that all required requests for approval are
properly submitted to Hallmark.
5. Approval. Odyssey agrees to comply with the brand identity standards
of the branding committee established by Hallmark ("Branding Committee") which
standards shall include, but not be limited to, logo, program headers,
visual/verbal standards, uses and positioning of logo, application of logo to
any marketing materials and uses in other media such as print advertising.
Further, Odyssey agrees that programming on the Service shall also comply with
the broadcast standards on Schedule A as amended by Hallmark from time to time.
Odyssey shall, at the request of Hallmark, submit to Hallmark pictures,
programs, film credits, press releases, advertising and promotional materials,
and other materials utilizing the Licensed Marks or broadcast on the Service for
Hallmark's approval, which may be withheld for any reason. Submissions shall be
directed to the attention of Xxx Xxxxxx, or such other person designated by
Hallmark from time to time.
6. Trademark Protection.
a. Hallmark will use its reasonable efforts to maintain
existing registrations for the Licensed Marks for use by Odyssey
pursuant to the terms and conditions herein contained.
b. Odyssey agrees to cooperate with Hallmark in obtaining and
preserving for Hallmark trademark protection for the Licensed Marks and
the name "Hallmark," to execute all documents which in Hallmark's
judgment are necessary therefor. Odyssey agrees to recognize Hallmark's
trademark rights in the Licensed Marks and to do nothing in derogation
or dilution thereof, either during the term of this Agreement or at any
time thereafter. Odyssey, for itself, its successors and assigns, does
hereby absolutely grant, convey, and assign to Hallmark any and all
legal and equitable right, title and interest, both tangible and
intangible, which it has or may hereafter acquire in the Licensed
Marks, including, but not limited to, any goodwill hereinafter
generated or created by it or anyone acting or claiming under it.
c. Odyssey, upon prior written approval from Hallmark, shall
have the right to enforce, at Odyssey's sole expense, its rights in the
Licensed Marks granted hereunder against third parties that are or may
be infringing the Licensed Marks so as to affect Odyssey's rights
granted hereunder.
d. Except as expressly set forth herein, Hallmark shall have
the right to take any action without regard to the effect of such
action on the rights granted in Section 2 hereof.
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7. Term. The term of this Agreement shall be one (1) year from the date
hereof, provided that it is not terminated sooner in accordance with the terms
and conditions set forth herein. No course of dealing, lack of notice of intent
not to renew, implied consent or other doctrine of law or equity shall be deemed
to give Odyssey the right to continued use of the Licensed Marks beyond the
stated term of this Agreement, or to create any duty (fiduciary or otherwise) on
Hallmark to permit any such use beyond the term of this Agreement.
8. Default. It shall be a Default hereunder in the case of the
happening and during the continuance of any of the following:
a. Odyssey distributes any program or picture in connection
with the Service which in Hallmark's sole discretion fails to comply
with the standards set forth in Section 4 hereof and Odyssey fails to
remove and stop the distribution, exhibition and broadcast of such
non-complying program or picture within 10 days of written notice from
Hallmark;
b. A Default occurs pursuant to Section 8(a) hereof three or
more times in any given 12 month period, regardless of whether Odyssey
has removed or stopped within 10 days of written notice from Hallmark.
c. Odyssey uses the Licensed Marks other than in accordance
with the terms of the grant herein or Odyssey fails to comply with any
term or obligation of this Agreement (other than 8(a) above) and, if
curable, fails to cure such unapproved use or breach within 10 days of
the date of written notice from Hallmark specifying such breach.
d. An event occurs (other than that described in 8(a) above)
which with the passage of time or the giving of notice, or both, would
constitute an event of default under the Program Agreement and, if
curable, Odyssey fails to cure such event within 10 days of written
notice from Hallmark.
e. Odyssey fails to make any payment when due under any loan
agreement with any financial institution and fails to make such payment
within 5 days thereafter.
f. Auditors determine that Odyssey is no longer an ongoing
concern.
9. Termination.
a. This Agreement shall terminate immediately and
automatically without notice in the event that
i. Odyssey attempts to assign, sublicense, pledge,
transfer or otherwise convey by operation of law or otherwise,
all or any interest in, directly or indirectly ("Transfer")
its rights hereunder;
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ii. Odyssey is adjudicated bankrupt, becomes
insolvent, makes any assignment for the benefit of its
creditors, has its assets placed in the hands of a receiver,
files a petition in bankruptcy, has filed against it a
petition in bankruptcy which is not discharged within 60 days
after its filing, or is dissolved or liquidated (in which
case, Odyssey, its receivers, representatives, trustees,
agents, or successors shall have no right to exploit or in any
way utilize the Licensed Marks).
b. This Agreement shall terminate upon 90 days written notice
in the event that Hallmark Cards no longer directly or indirectly has
voting control of Odyssey.
c. This Agreement shall terminate immediately and
automatically without further notice upon the occurrence of an event of
Default pursuant to Section 8 hereof.
d. Upon the termination or expiration of this Agreement, or
the Program Agreement, Odyssey agrees to immediately and permanently
discontinue the use of the Licensed Marks, including any adaptations
thereof.
e. Odyssey hereby acknowledges that its misuse of the Licensed
Marks or failure to cease the use of the Licensed Marks upon the
termination or expiration of such rights or this Agreement will result
in damage to Hallmark and to its parent, Hallmark Cards for which there
is no adequate remedy at law. Accordingly, in the event of such misuse
or failure, Hallmark and Hallmark Cards shall be entitled to equitable
relief by way of temporary and permanent injunctions and such other
relief as any court of competent jurisdiction may deem just and proper.
10. Additional Agreement. Odyssey hereby agrees that Hallmark and its
affiliates shall not have any liability or obligation to Odyssey on account of
the exercise of any of Hallmark's rights or remedies hereunder. Odyssey hereby
waives and releases any right to commence or pursue any legal action (whether
suit, counterclaim, cross claim or other action) against Hallmark or any of its
affiliates challenging the termination by Hallmark of the trademark license
granted herein based on a theory of breach of fiduciary obligation or conflicts
of interest of Hallmark or any of its affiliates or similar theories or premised
on the exercise of control or influence over management by Hallmark or its
affiliates.
11. Third Party Infringement. Odyssey shall promptly notify Hallmark of
any apparent infringement of any rights granted by Hallmark to Odyssey
hereunder. Hallmark shall have the exclusive right to institute legal action (at
its own expense) against the infringer or to otherwise terminate such
infringement. Odyssey shall have no right to make any demands or claims, bring
suit, effect any settlements or take any other action with respect to such an
infringement without the prior written consent of Hallmark.
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Odyssey agrees to cooperate at its cost with Hallmark with respect to any suits
or other action taken under this paragraph and that all recoveries for such
infringements shall belong to Hallmark. Hallmark may name Odyssey as a party to
any suit against third party infringers if Hallmark, in its sole opinion,
determines that it is desirable to any infringement suit.
12. Nonassignability. Odyssey agrees that without the prior written
consent of Hallmark it may not Transfer the rights granted hereunder or permit
any third party to utilize the Licensed Marks and any such Transfer shall be
null and void ab initio upon such proposed Transfer.
13. Applicable Law. The validity, construction and performance of this
Agreement shall be governed by, and interpreted in accordance with, the laws of
the State of Missouri. In any dispute relating to this Agreement, the parties
hereto submit themselves to the exclusive jurisdiction of the tribunals of the
State of Missouri and the United States Courts within the State of Missouri,
expressly waiving any venue to which they may be entitled by their present or
future domiciles and any objection based on forum non conveniens.
14. No Agency. Nothing in this Agreement shall be construed to make
either party hereto the agent or representative of the other party and neither
party shall so hold itself out nor shall either party be liable or be bound by
any act or omission of the other party.
15. Waiver. Failure of either party at any time to require the
performance of any provision under this Agreement shall not affect the right of
such party to require full performance thereafter and a waiver by either party
of a breach of any provision of this Agreement shall not be taken or held to be
a waiver of any further or similar breach or as nullifying the effectiveness of
such provision.
16. Amendments. This Agreement expresses the entire understanding of
the parties hereto and replaces any prior oral or written agreements concerning
the subject matter hereof and Licensee acknowledges that it has not executed
this Agreement in reliance upon any promise, agreement, representation or
warranty not expressly set forth in this Agreement. No amendment modification,
or supplementation hereof shall be effective or binding on either party hereto
unless reduced to writing and executed by the duly authorized representatives of
both parties hereto.
IN WITNESS WHEREOF, this Agreement is executed as of the date first
written above.
XXXXXXXX XXXXXXXXX, INC.
By /s/ XXXXXX XXXXXXXXX
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Title Vice President
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ODYSSEY HOLDINGS, L.L.C.
By /s/ XXXXXXXX X. XXXXXX
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Title President & Chief Executive Officer
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GUIDELINES FOR ODYSSEY PROGRAMMING
This section sets forth a summary of Broadcast Standards and Practices policies
with which all entertainment programming produced for telecast on the Odyssey
must conform. Programs must meet appropriate standards of taste and comply with
all applicable governmental regulations.
A. PURPOSE OF ODYSSEY PROGRAMMING
The purpose of Odyssey's programming is to provide families with positive
meaningful experiences through high quality entertainment that celebrates the
human spirit and caring relationships. The programming should strive to
reinforce positive social values, educate and inspire.
B. SPECIFIC ISSUES
1. DRUGS AND ALCOHOL
Drug and alcohol abuse are among society's most serious social problems. Odyssey
has a duty to ensure that any depiction of drug or alcohol consumption is
presented in an appropriate and responsible manner.
All portrayals of alcohol consumption and/or use of legal or illegal drugs
should be restricted to situations necessary to plot and/or character
delineation. The use of illegal drugs and/or the abuse of legal drugs or alcohol
is destructive behavior and shall not be shown as desirable, beneficial or as an
effective problem-solver.
Drug and alcohol use should not be glamorized and, when substance abuse is
noted, attention should be directed to the adverse consequences of such abuse
(e.g. the dangers of driving while intoxicated).
2. LANGUAGE
Language and dialogue must be judged generally acceptable to a mass audience and
appropriate to a public medium. Coarse or vulgar language should be avoided.
Blasphemy and obscenity are unacceptable.
3. SEXUAL MATERIAL
Sexual scenes must be sensitively handled and contribute to plot or
characterization. Gratuitous or overly explicate sexual action is unacceptable
and the depiction of physical coercion intended to satisfy prurient interests is
to be avoided. The depiction of the act of sexual intercourse is prohibited.
Particular care must be taken in scenes where sex is coupled with violence. Rape
must be portrayed as an act of violence, not a sexual act. In general, nudity is
unacceptable. Partial nudity and degrees of undress shall not be used for
prurient or exploitative purposes.
4. STEREOTYPES
Characters in Odyssey programs should reflect the wide diversity of our
audience, keeping in mind the importance of dignity to every human being.
Sensitivity is necessary in the presentation of material relating to age, sex,
race, religion, sexual orientation, ethnicity or national derivation to avoid
demeaning stereotypes.
Special precautions must be taken to avoid portrayals and terminology which
ridicule or patronize those who are physically or mentally disabled.
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5. VIOLENCE
Explicit, excessive gratuitous violence is to be avoided. Programs are not to
glamorize violence and/or promote violence as the solution to problems.
Depictions of violence in any form must be essential to the development of
theme, plot or characterization. The intensity and frequency of violent acts
must be limited.
Exceptional care must be taken where children are victims of, or are threatened
by acts of violence.
C. GENERAL ISSUES
ADVISORIES
There should be no programming for which circumstances (subject matter,
treatment, and time period) require the use of special audience advisories in
programs or program promotions.
ANIMALS
The use and handling of animals must conform to accepted standards of humane
treatment.
CHARITIES
Solicitations within the body of an entertainment program for charities or other
non-profit organizations are generally not permitted.
COMMERCIAL MENTIONS/SPONSOR REFERENCES
Extraneous commercial mentions or exposure of commercial names, products or
trademarks included in program content are to be minimized and are subject to
prior approval by identification of, or references to, a program's sponsor other
than previously accepted commercial announcements, billboards, and program
titles must be specifically approved in advance by the Hallmark Branding
Committee.
CONTROVERSIAL TOPICS
Issues of social importance or controversy must be handled with care. A decision
to present such subject matter in an entertainment program should include a
determination that the particular program involved is appropriate for the
presentation contemplated.
HYPNOSIS
Actual hypnosis techniques may not be demonstrated in detail.
INSTRUCTIONAL CRIMINAL BEHAVIOR
Scenes containing complete and accurate instructions in the use of illegal
drugs, harmful devices or weapons, or describing imitable techniques for other
illegal activities or evasion of apprehension are not permitted.
MISLEADING DRAMATIZATIONS, SIMULATIONS AND RECREATIONS
Odyssey programs may not be deceptive to the viewing public in any material
respect. In cases where the audience might be misled, appropriate disclaimers
are to be used. Programming purporting to present non-fictional material in a
non-fictional manner must be accurate with respect to material facts or
statements.
The use of techniques or language such as "we interrupt this program" which may
cause viewers to believe an actual news report is being presented is not
permitted.
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PROFESSIONAL PROCEDURES
Dramatization or actual presentation of professional advice and procedures must
be accurate and comply with recognized professional practices.
PROMOTIONAL ELEMENTS
Promotional elements such as "teasers" and "trailers," including "promos," must
properly reflect the actual nature and content of the program. Certain material
acceptable in the context of the program may not be appropriate for inclusion in
promotional elements.
PSEUDO-SCIENCES
Program material should not promote belief in the efficacy of occultism,
astrology, mind-reading or other pseudo-sciences.
SUBLIMINAL MESSAGES
Audio and video content which is inserted within the body of a program which
attempts to convey information below the level of normal viewer awareness is
prohibited.
D. SPECIALIZED PROGRAM TYPES
1. PROGRAMS INTENDED TO BE VIEWED PRIMARILY BY CHILDREN
Odyssey must be sensitive to the special needs of young people. Odyssey should
present educational and pro-social materials and require that producers avoid
program content that would have an adverse effect on a child's behavior or
development. Acknowledging the audiences' expectation that children's programs
will provide young viewers with a positive entertainment experience, producers
of children's programs should not only observe the general standards guidelines
contained herein, but should be particularly careful with respect to the
following:
a. Characters should not be placed in situations that would provoke
excessive or prolonged anxiety in children. Catastrophe and jeopardy
should not be extreme as to frighten younger viewers. References to
death and/or suicide should be handled with extreme caution.
b. Characters should reflect the ethnic and racial diversity of
Odyssey's audience. It is encouraged that women, minorities, disabled
persons and distinctive characters with whom viewers would personally
identify (e.g. kids who wear glasses) should be included, but,
derogatory stereotypes should be avoided.
c. Violence should not be depicted as glamorous or shown as an
acceptable solution to problems. The negative consequences of violence
should be stressed. To mitigate violence, action sequences should
emphasize unrealistic settings, fantasy weapons, and superhuman feats.
d. Dangerous behavior which could prompt a child to place himself or
others in jeopardy should not be shown. Special care should be taken
with respect to depicting fire-making techniques or use of electrical
devices, especially when such materials are readily available in the
viewer's home. Depicting household items as weapons must also be
avoided.
e. Characters should not engage in unlawful, anti-social or
self-destructive behavior without suffering negative consequences for
their actions. Whenever possible, protagonists should be shown
following generally accepted rules of safety (e.g. wearing seatbelts).
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f. Romantic storylines which include acts of affection are generally
considered appropriate but should be handled with discretion. Language
and storylines that are sexual in nature should be avoided.
g. Commercial products and references may only be included in programs
with Odyssey's approval and must serve a valid entertainment purpose.
h. Children's programs are generally required to have Separator Devices
before and after commercial messages.
2. FACT-BASED PROGRAMS
There shall be no broadcast of any deceptive or misleading programs or program
material. Fact-based dramas and presentation must be reviewed for accuracy and
producers must provide substantiation when deemed necessary.
3. THEATRICAL FILMS
Theatrical or other programs originally produced for another medium must be
reviewed before broadcast and shall comply with all Odyssey Broadcast Standards
and Practices.
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