ON COMMAND CORPORATION — MARRIOTT INTERNATIONAL SERVICE AGREEMENT
EXHIBIT 10.1
COMPOSITE EXECUTION VERSION
NOTE: THIS DOCUMENT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST PURSUANT TO RULE 24b-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934. PORTIONS OF THIS DOCUMENT FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED HAVE BEEN REDACTED AND ARE MARKED HEREIN BY “***”. SUCH REDACTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE COMMISSION PURSUANT TO THE CONFIDENTIAL TREATMENT REQUEST.
ON COMMAND CORPORATION — MARRIOTT INTERNATIONAL
SERVICE AGREEMENT
ARTICLE I. | DEFINITIONS | 3 |
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ARTICLE II. | TERM | 3 |
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ARTICLE III. | PILOT | 4 |
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ARTICLE IV. | APPLICABILITY TO HOTELS | 5 |
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ARTICLE V. | INSTALLATION | 6 |
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ARTICLE VI. | SERVICES; SYSTEM UPGRADES | 8 |
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ARTICLE VII. | EXCLUSIVITY | 8 |
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ARTICLE VIII. | PAY-PER-USAGE SERVICES | 9 |
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ARTICLE IX. | FREE-TO-GUEST SERVICES | 15 |
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ARTICLE X. | MATV SYSTEM; HOTEL PMS | 18 |
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ARTICLE XI. | OWNERSHIP OF THE SYSTEM | 19 |
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ARTICLE XII. | HOTEL FACILITIES; COMPLIMENTARY ROOMS | 21 |
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ARTICLE XIII. | OPERATION AND MAINTENANCE OF THE SYSTEM | 21 |
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ARTICLE XIV. | PUBLICITY REGARDING THE SYSTEM | 26 |
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ARTICLE XV. | TRAINING AND CONSULTATION | 26 |
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ARTICLE XVI. | SPECIAL WARRANTIES AND COVENANTS OF HOTEL | 26 |
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ARTICLE XVII. | INSURANCE | 27 |
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ARTICLE XVIII. | CONFIDENTIALITY | 28 |
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ARTICLE XIX. | OWNERSHIP RIGHTS | 29 |
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ARTICLE XX. | DEFAULT; FORCE MAJEURE | 31 |
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ARTICLE XXI. | WARRANTIES; DISCLAIMER; LIMITATION OF LIABILITY | 34 |
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ARTICLE XXII. | GENERAL TERMS | 35 |
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ARTICLE XXIII. | APPENDIX | 39 |
EXHIBITS | ||
A | Installation Priority (Section 5.2) | |
B | Pay-Per-Usage Service Fee (Section 8.4) | |
C | Revenue Sharing (Section 8.6) | |
D | Taxes (Section 8.6) | |
E-1 | Basic Cable Channel Lineup (Section 9.2) | |
E-2 | Optional Expanded Cable Lineup | |
E-3 | Broadcast Lineup (Section 9.3) | |
F | Deliberately left blank |
G | Termination Charges (Section 20.3) | |
H | Generation III Platform (Appendix) | |
I | Bundled Pricing for Pilot Hotels (Section 8.13) |
COMPOSITE EXECUTION VERSION
ON COMMAND CORPORATION — MARRIOTT INTERNATIONAL
SERVICE AGREEMENT
THIS SERVICE AGREEMENT (this “Agreement”) is entered into as of this 21st day of March, 2001 (“Effective Date”) between On Command Corporation (“OCC”), a Delaware corporation, with offices at 0000 X. Xxxxx Xxxxxx, Xxxxxx, XX 00000, and Marriott International, Inc., a Delaware corporation with offices at 00000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, 00000, on behalf of itself and its majority-owned or controlled affiliates (“Marriott”), sets forth the terms for the provision of services to guests of the hotels covered by this Agreement through an OCC supplied system and related materials.
WHEREAS, Marriott desires to make Services available to Guests;
WHEREAS, OCC desires to furnish the Services at the Hotels using the System; and
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• | Bethesda Marriott |
• | Denver Marriott Tech Center |
• | San Diego Marriott Hotel and Marina |
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(a) The installation of the System at the Pilot Hotels shall be completed as soon as practicable after the Effective Date, but in any event not later than March 1, 2001. A 30-day trial of the System in the Pilot Hotels shall be completed not later than March 31, 2001.
(b) By no later than *** following the completion of the trial, Marriott shall notify OCC in writing if Marriott has accepted the System or if the System has not performed to its satisfaction. If in such notice Marriott states that it has accepted the System, OCC shall, within *** of receipt of such notice, commence installation of the System (as accepted by Marriott) pursuant to the installation provisions of this Agreement.
(c) If in such notice Marriott states that the System did not perform to its satisfaction, then Marriott shall, within *** of such notice, identify the deficiencies to OCC in writing and OCC shall have an additional *** after receipt of such notice to correct all such identified deficiencies. If at the end of such *** correction period such corrections are not fully effected in Marriott’s reasonable discretion, then Marriott shall have the right to terminate this Agreement with no further liability or obligation hereunder by providing written notice of termination within ten (10) days following completion of such *** correction period, and OCC shall remove the System from the Pilot Hotels pursuant to the provisions of Section 11.3. If Marriott accepts the System following the cure, it shall so notify OCC in writing within *** following completion of such *** correction period, and OCC shall install the System (as modified following the cure) pursuant to the installation provisions of this Agreement.
(d) The date on which Marriott accepts the System in writing following the trial shall be the “Acceptance Date.”
ARTICLE IV. APPLICABILITY TO HOTELS
4.1 Scope. This Agreement applies to all Hotels, subject to Section 2.4 regarding Hotels with Pre-Existing Competitive Commitments.
4.2 Hotels with Existing OCC Agreements.
(a) The parties acknowledge that there are Hotels that have entered into agreements with OCC for delivery of in-room entertainment services (e.g., pay-per-view, cable programming, and the like) prior to having the System installed under this Agreement (“Existing OCC Agreements”). Once such a Hotel installs the System under this Agreement, then as of the Hotel Commencement Date for such Hotel, the Existing OCC Agreement shall be automatically terminated with no liability therefor to the Hotel, OCC, or Marriott, and such Hotel shall be deemed covered by this Agreement.
(b) The parties acknowledge that as part of Marriott’s business, non-Marriott hotels will be converted into hotels that are operated by Marriott under a Covered Brand (“Converted Marriott Hotels”). If a Converted Marriott Hotel entered into an Existing OCC Agreement prior to its conversion, then the Hotel Term for such Converted Marriott Hotel shall be deemed to have commenced on such Converted Marriott Hotel’s original term commencement date under the Existing OCC Agreement. Notwithstanding the foregoing, if OCC installs the System in such
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Converted Marriott Hotel under this Agreement, then the Hotel Term Commencement Date for such Converted Marriott Hotel shall be as provided in Article II. In addition, if less than 24 months have elapsed in such Converted Marriott Hotel’s original term under the Existing OCC Agreement, then the Hotel Term Commencement Date for such Converted Marriott Hotel shall be as provided in Article II.
4.5 ***
• | 1st month: | *** rooms | ||||
• | 2nd — 3rd months: | *** rooms per month | ||||
• | 4th — 9th months: | *** rooms per month | ||||
• | Thereafter: | *** rooms per month until all Hotels have been installed |
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Unless otherwise agreed by Marriott, for purposes of the foregoing monthly Room installation requirement, OCC will not be deemed to have installed any of the Rooms in a Hotel unless it has installed the System in all Rooms in such Hotel.
5.4 Additional Installation Provisions.
(a) The Hotel shall provide such access as OCC reasonably may request to enable OCC to complete the installation of the System and shall provide all Hotel Facilities in reasonable time to allow OCC to complete installation. OCC shall test the System to ensure functionality and adherence to the terms of this Agreement both during and immediately following installation. The Hotel shall provide OCC a secure storage location for its equipment during the installation process.
(b) *** These costs shall include but shall not be limited to purchasing, installing, and maintaining the System, all cables required by the System or used to connect the System to other Hotel systems such as the property management computer, providing telecommunications connections for high-speed Internet access through the System, and any necessary interfaces with the STSN Internet Access System.
(c) All equipment installed, provided, or modified by OCC, its agents, or subcontractors shall be listed by the Underwriters Laboratory, Inc. (“UL”) or shall be built to their standards. OCC represents and warrants that all design, equipment, and installation shall be in strict compliance with the National Electrical Code Handbook as published by the National Fire Protection Association and as amended periodically, Federal Communications Commission requirements, and local or other governing codes.
(d) OCC agrees that the equipment installed and/or the connections to the existing TV or antenna, satellite or cable system will not impair in any way the ordinary reception of broadcast programs or other services on the cable system, or the STSN Internet Access System.
(e) Installation shall be performed in a professional, workmanlike manner, through use of reasonable care, and in accordance with industry standards. OCC agrees to coordinate
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with each Hotel any installation, repair, maintenance, replacement, or removal so as to minimize the disruption to or inconvenience of the Hotels’ guests or employees or the daily Hotel operations and so as to initiate and complete those tasks as expeditiously as possible.
ARTICLE VI. SERVICES; SYSTEM UPGRADES
(a) OCC will upgrade the System, including the software, hardware, and other equipment that are a part thereof***, such that the System installed in each of the Hotels will provide a service to the guest which is consistent in terms of functionality with (i) OCC’s latest offerings to other lodging companies, (ii) in-room entertainment technology offered by other service providers to lodging properties, and (iii) improvements in entertainment and television technology in the lodging industry (collectively, “System Upgrades”). Marriott shall have the right to approve System Upgrades prior to installation in Hotels, such approval not to be unreasonably withheld. In determining whether the System is consistent with (i), (ii), or (iii) above, among the factors to be considered include the extent to which the offerings to which the System is being compared are extant in the lodging industry at hotels which are comparable to then-existing Covered Brands in terms of target customer segment, average hotel size and services to be provided.
(A) To the extent System Upgrades occur after OCC has installed a System in a Hotel, OCC shall install the System Upgrade in such Hotel as promptly as reasonably practicable (“Retroactive System Upgrade”) under an installation schedule and Hotel proposed by Marriott for OCC’s consent, not to be unreasonably withheld (such priority and schedule to be subject to the installation preference in Section 5.3). The actual costs for a Retroactive System Upgrade, including the costs of any required changes to the MATV System ***
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Competing Service to be made available to Rooms in the Hotels. Hotels that have, as of the Effective Date, already installed a Competing Service shall be exempt from this exclusivity obligation.
ARTICLE VIII. PAY-PER-USAGE SERVICES
8.1 Pay-Per-Usage Services. “Pay-Per-Usage Services” means in-room electronic entertainment and information services that OCC shall make available to Guests for purchase using the System, which services shall include, without limitation, (i) movies, specialized videos (such as workout, health and exercise), special events and short feature programming (“Movies and Events”), (ii) interactive video games (“Games”), (iii) Internet access by TV and/or otherwise as approved by Marriott in advance (“Internet TV”) (iv) music programming (“Music”) and (v) any other services that OCC and Marriott agree to offer to Guests and for which Guests or other persons at the Hotel are charged a separate fee. The content of all Pay-Per-Usage Services, including, without limitation, all user interface, design and content, positioning and packaging***. The programming of the Pay-Per-Usage Services shall be in accordance with the following:
(a) Movies and Events. OCC shall provide Guests with multiple (but in no event fewer than *** in any Hotel at any time) in-room Movies and Events that Guests may access on demand using the System. OCC shall select *** the Movies and Events to be made available to the Guests; provided, however, at least *** of such Movies in any Hotel at any time shall be Motion Picture Association of America (“MPAA”) -rated films (“Rated Movies”) and the balance may include other content and other films. Of the Rated Movies, at least *** shall have received ratings of G, PG, PG-13 or R from the MPAA.
(b) Video Games. OCC shall provide Guests with access to not fewer than *** (at any time at any Hotel) interactive video games using the System, on a ***.
(c) Internet TV. OCC shall provide Guests with in-room access to the Internet, using a special browser that is part of the System, a Keyboard, the System TV as a display device and, if necessary, an in-room network termination device. Through the Agreement Term, other methods of providing in-room Internet access using the System may also be made available to Guests, with Marriott’s prior written consent.
(i) “Internet TV Portal” shall mean the start-up screens, all menu screens and the material displayed upon those screens, appearing when Guests access the Internet TV Service.
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(ii) OCC acknowledges that Marriott intends to present a consistent portal experience to its guests, regardless of the method chosen by the guest to access the portal. Accordingly, OCC shall design and develop the Internet TV Portal such that it has substantially the same design elements and look and feel as the portal for the STSN Internet Access System, including the presentation of advertisements and other shared content. In addition, except with respect to OCC trademarks, Marriott shall have the right to replicate the design elements and look and feel of the Internet TV Portal for use by Marriott in other services and venues, such as in web sites developed or used by Marriott.
(iii) *** The Internet TV Portal, as approved by Marriott, shall be for Marriott’s exclusive use and may not be made available to other hotel companies.
(iv) The Internet TV Portal shall contain prominent links to Marriott content and services, including the Virtual Personal Concierge and promotional content.
(v) Marriott may participate in the design and development of the Internet TV Portal. Such participation may consist of providing design and look and feel elements, content, links, features and functions, with OCC’s consent, not to be unreasonably withheld. Use by either Marriott or OCC of third parties to assist in the design and development of the Internet TV Portal shall be subject to mutual agreement. In the event such third parties are used, the costs therefor shall be borne ***.
(d) Music On Demand. OCC shall provide Guests with in-room music selections which Guests may access on demand using the System, which shall include not fewer than *** compact disk titles by original artists at any time at any Hotel. Guests may customize personal play lists.
(e) Digital Music Network. OCC shall provide Guests with the ability to listen to any genre of music without searching. The service pre-selects popular songs from hundreds of albums in the chosen category. The System shall include at least *** music genres with more than *** categories and sub-categories.
(f) Archived Television. OCC shall provide archived television content, consisting of popular TV programming stored by the System for Guest viewing on demand (e.g., archived episodes updated monthly of HBO programs including, as of the Effective Date, Sex and the City and The Sopranos).
(g) Advertising Insertion Capability. By ***, OCC shall provide the capability to insert paid advertisements of its choice in the programming provided to Guests. If, after such a paid advertisement has been inserted, Marriott objects to such advertisement, it may so notify OCC in writing and the parties will meet promptly to undertake to resolve Marriott’s concerns. *** In no event may inserted paid advertisements contain Inappropriate Content, or promotional or marketing content for Marriott’s competitors. As soon as the System becomes capable of transmitting inserted advertisements to selected chains of hotels or to individual hotels, ***.
(h) T-Commerce and Other Next Generation Offerings. As part of the System Upgrades, OCC shall provide for the capability for T-Commerce (commerce through the System
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using the System TV as the user interface), personalization, virtual trade show, and localized convention advertising services, ***.
(i) Other Services. If, during the Term, OCC wishes to offer additional services to Guests using the System, OCC shall inform Marriott of such desire and OCC and Marriott shall negotiate in good faith to set the terms upon which such services shall be provided to Guests pursuant to this Agreement, such agreed-upon terms to be set forth on an additional exhibit to this Agreement. If OCC and Marriott are unable to reach an agreement on the terms under which the additional services shall be made available to Guests, the parties shall resolve this dispute pursuant to Section 22.3.
(a) The parties shall conduct an “Adult Content Link Test” as described in this paragraph. Marriott shall have the right to designate the Hotels to participate in the Adult Content Link Test, provided that it may designate no more than *** Hotels for each Covered Brand, or *** of the Hotels in any particular Covered Brand, whichever is less. For Hotels participating in the Adult Content Link Test, OCC will configure the System so that any Movies and Events receiving an X or NC-17 or similar MPAA rating, or containing equivalent adult content, and any other similar programming or content made available by OCC to Guests through the System, shall be accessible only through a mutually agreed link from the Internet Portal, and shall not be listed, advertised or promoted on the main menu screen or on the Movies and Events menu screen, except as otherwise agreed by the parties. The Adult Content Link Test shall continue for a period of up to *** following commencement thereof. If after the completion of the Adult Content Link Test, the placement of the link to such content has reduced revenues per Room generated by the Pay-Per-Usage Service in any individual Hotel to a level that is more than *** below the average revenues per Room of such Hotel (or similar Hotels, to be identified by the parties during the test) for the 12-month period prior to the test under OCC’s prior system, then the link to such content shall be placed in the standard location on the main menu screens of the System. If the placement of the link has not reduced revenues as described above, then the parties will meet to mutually determine, reasonably and in good faith, a plan for implementing the adult content link placement in other Hotels. Notwithstanding the immediately preceding sentence, if for any six consecutive month period, the revenues of any Hotel in which there is an implemented adult content link, the Pay-for-Usage Service revenues are *** or more below the average revenues from other Hotels in the same brand group in which no adult content link has been implemented (taken as a whole), then the parties will meet to mutually determine, as before, a plan for removing the relevant adult content link.
(b) ***
(c) ***
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8.4 Pay-Per-Usage Service Fee. *** The initial fees to be charged for each Pay-Per-Usage Service shall be set forth in Exhibit B. Changes to such pricing shall be in accordance with Exhibit B. Based upon the Access Record, Marriott shall cause Hotel personnel to charge and collect from each Guest the Pay-Per-Usage Service Fees incurred by such Guest. On a periodic basis, Marriott shall cause the Hotel to reconcile the Access Record with the System activity reported by the Hotel’s property management system (“Hotel PMS”) and notify OCC as promptly as practicable (but in any event within thirty (30) days) of the Hotel’s discovery of any discrepancies in such reconciliation. If for any reason the Hotel PMS is not functioning properly and/or is incapable of automatically posting and reporting the System activity, Marriott agrees that the Access Record shall be conclusive evidence of System usage, absent manifest error on the part of the Monitoring Unit.
(a) The parties acknowledge that OCC will also be receiving revenues relating to In-Room Electronic Services from third parties (such as revenue from Advertising Insertion and T-Commerce under Section 8.1). Thirty (30) calendar days after the end of any calendar month (“OCC Due Date”), ***.
(b) The parties acknowledge that a Hotel, prior to the installation of the System, might have already entered into an agreement with a third party for the delivery of cable and broadcast programming services that would otherwise be provided by OCC under this Agreement, and would therefore not be receiving the Cable and Broadcast Programming Services from OCC. ***
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OCC understands and agrees that Marriott shall generally refund the Pay-Per-Usage Services Fees to the Guest in the event the Guest disputes such fee. The parties acknowledge that, for discretionary Adjustments (i.e., for Adjustments not due to a problem with the System) in excess of a certain percentage, OCC may be obligated to pay licensing fees to third party licensors of Rated Movies (“Discretionary Adjustments”). The parties will work together in good faith to mutually determine a reasonable system or process for tracking and reporting Discretionary Adjustments. In the event that Discretionary Adjustments cause OCC to be liable to any third party for license fees for Rated Movies, Marriott shall pay to OCC *** of the aforesaid amounts that OCC is required to therefore pay to its licensor. OCC will, to the extent possible, advise Marriott when, on a cumulative basis, Marriott is approaching the threshold after which OCC will be obligated to pay its licensor for a usage which has been refunded to the guest by Marriott.
8.10 Fee Account. Until the monthly OCC Revenue Share is remitted to OCC, the OCC Revenue Share of the Pay-Per-Usage Service Fees charged to Guests during any such month shall be held in trust for OCC by the Hotels and shall be deemed the property of OCC. ***
8.12 Inspections of Books and Records.
(a) The books and records of the relevant Hotel pertinent to the Services, Adjustments or discrepancies between the Access Record and the Hotel PMS during the Term of this Agreement shall be open to inspection and audit (an “Inspection”) by an authorized representative of OCC upon reasonable advance written request to the Hotel and Marriott. OCC shall have the right to inspect and audit such books and records only for the *** preceding years. OCC must bring any claim resulting from such an audit within *** after completion of such audit. OCC’s right to inspect and audit such books and records shall not extend beyond *** after the expiration or termination of this Agreement with respect to a particular Hotel.
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(b) The books and records of OCC relating to the Services (including related information, data and files and further including information relating to Net Additional Revenue, the allocation thereof to the Hotels during the Agreement Term and the accuracy and results of the Monitoring Units), shall be open to an Inspection by an authorized representative of Marriott or the Hotels upon reasonable advance written request to OCC. Marriott shall have the right to inspect and audit such books and records only for the *** preceding years. Marriott or the Hotel must bring any claim resulting from such an audit within *** after completion of such audit. Marriott’s and the Hotels’ right to inspect and audit such books and records shall not extend beyond *** after the expiration or termination of this Agreement with respect to a particular Hotel.
(c) Marriott shall cause the relevant Hotel to promptly remit to OCC any fees or other amounts (without interest thereon, unless the Hotel’s relevant actions, as applicable, were made in bad faith in which case interest thereon shall be added at a rate equal to that provided for in Section 8.8) that are owed to it as demonstrated by an Inspection. If OCC has been paid, since the immediately preceding Inspection (or if there has not been a previous Inspection, since the Hotel Commencement Date for the relevant Hotel), less than *** of the OCC Revenue Share that OCC should have been paid during such period (as reasonably determined by OCC as a result of such Inspection), the Hotel shall reimburse OCC for the reasonable cost of such Inspection.
(d) OCC shall promptly remit to the Hotels (or to Marriott, at Marriott’s request) any fees or other amounts (without interest thereon, unless OCC’s relevant actions were made in bad faith in which case interest thereon shall be added at a rate equal to that provided for in Section 8.8) that are owed to it as demonstrated by an Inspection. If the Hotels (or Marriott, as the case may be) have been paid, since the immediately preceding Inspection (or if there has not been a previous Inspection, since the Hotel Commencement Date for the relevant Hotel), less than ***, OCC shall reimburse Marriott or the Hotels, as applicable, for the reasonable cost of such Inspection.
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ARTICLE IX. FREE-TO-GUEST SERVICES
(a) The Cable and Broadcast Programming Services; and
(b) The Hotel Guest Services,
and such other electronic displays or services that OCC may add from time to time with Marriott’s prior written consent.
(a) Each Hotel may elect to receive the Basic Cable Channel Lineup or the Optional Expanded Channel Lineup. As of the Effective Date, OCC’s total direct third party costs (amounts actually paid to appropriate third parties for the right to distribute the applicable cable programming) (“Direct Programming Costs”) are listed for each of the Cable Lineups in Exhibits E-1 and E-2, on a per-available-room basis.
(b) The Cable Programming Services *** to arrive at the fees payable by the Hotel per available room per month for the Cable Lineups. As of the Effective Date, this fee is reflected as the “Hotel Payment” in Exhibit E-1 or E-2, as applicable.
(c) The parties acknowledge that a Hotel, prior to the installation of the System, might have already entered into an agreement with a third party for the delivery of cable programming services that would otherwise be provided by OCC under this Agreement, and would therefore not be receiving the Cable Programming Services from OCC. In such event, ***. ***. This paragraph shall only apply for the duration of the agreement with the third party for cable programming services, which the Hotel will seek to terminate (or not renew) as soon as reasonably practicable under the circumstances without causing a breach thereunder or incurring any liability thereunder.
(d) Marriott shall have the right on a Hotel-by-Hotel basis to substitute one or more cable channels that are commercially available in the Hotel’s area for the same number of cable channels in the Cable Lineups. Such substitution *** without such substitutions. In the event
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that the total Direct Programming Costs are higher with such substitutions, OCC shall so inform the Hotel, which, if it elects to proceed with the substitutions, shall pay the difference in Direct Programming Costs to OCC. It is understood that having certain channels present in all Hotels could, among other things, increase revenue opportunities for the System. Accordingly, the substitution right described in this paragraph shall not apply to the channels identified as “Protected Channels” in Exhibits E-1 and E-1. In addition, OCC may propose changes to the Protected Channels for Marriott’s review and approval, not to be unreasonably withheld.
(e) The Hotel Payments set forth on Exhibits E-1 and E-2 shall be fixed for a period of *** from the Hotel Commencement Date for all Hotels installed during the *** period following the Effective Date. If during such *** period, but not earlier than ***, the documented Direct Programming Cost to OCC of the Cable Lineups increases by more than *** on an aggregate basis over the preceding twelve months, then ***. In no event may OCC replace the following channels: ***. After the expiration of that *** period, the Hotel Payments for the Cable Lineups may be increased ***, such increase not to exceed *** over the amount paid by the Hotel in the preceding twelve months. To the extent such increase exceeds *** over the preceding 12 months, the Hotels shall have the option to (i) substitute channels on Exhibit E-1 so that the aggregate cost does not exceed a *** increase, or (ii) adjust the revenue sharing under Exhibit C so that OCC recovers the amount of any such increase to the extent it exceeds ***. Marriott shall have the right to audit the Direct Programming Costs associated with any such increases.
(f) If OCC fails to provide Free-To-Guest Services to a Hotel for at least *** consecutive hours after the Hotel notifies OCC of a System failure such that the Free-To-Guest Services are not adequately received or able to be distributed by a Hotel, then the Hotel shall not be required to make the pro rated Hotel Payments applicable to the days during which the Free-To-Guest Services were not provided.
9.3 Broadcast Programming Services.
(a) The Broadcast Programming Services include providing to each Hotel the programming from the major broadcast networks identified in Exhibit E-3 (the “Broadcast Lineup”).
(b) If, at the time OCC installs the System, a Hotel receives the major broadcast networks utilizing a local, off-air antenna, OCC shall adapt the System, at Marriott’s request and at no cost to the Hotel, to enable the Hotel to continue receiving such Major Broadcast Networks using the Hotel’s antenna.
9.4 Additional Cable or Broadcast Programming.
(a) At any time during the Term, Marriott and or the Hotel, with OCC’s consent which shall not be unreasonably withheld, may elect to add additional channels of programming to the Cable and Broadcast Programming Services beyond the total channels identified in this Agreement in the Cable Lineups and the Broadcast Lineups (as of the Effective Date, *** channels). For each channel added beyond the total channels identified in this Agreement, Hotel shall pay OCC ***. For additions to the Cable Lineup any additional ongoing charge shall be
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determined pursuant to Section 9.2. For additions to the Broadcast Lineup, any ongoing charge shall be equal to OCC’s Direct Programming Costs, if any, for such additions.
(b) OCC shall notify the Hotel if a request for additional channels under the prior paragraph would prevent OCC from meeting the minimum delivery requirement described in Section 8.2. In such event, the Hotel must elect one of the following two options: (i) withdraw its request for additional channels; or (ii) agree to pay for any upgrade to the MATV System that would be required to support the additional channels in a manner that would not prevent OCC from meeting its minimum delivery requirement in Section 8.2.
9.5 Cable Permits, Licenses and Approvals. OCC’s delivery of Cable and Broadcast Programming Services is subject to OCC’s ability to obtain all necessary local permits and licenses, a clear signal and receipt of any necessary approvals from any supplier of such Cable and Broadcast Programming Service. OCC shall use commercially reasonable efforts to obtain and keep in effect all such permits, licenses and approvals. If the quality of the signal offering such Service is disrupted, interfered with or otherwise affected by sources beyond the control of OCC the cost to restore non-interrupted Cable and Broadcast Programming Service, to the extent technologically possible, shall be the responsibility of relevant Hotel. Transmission of major broadcast networks at the Hotel may be subject to pricing restrictions and copyright fee payments under applicable federal law on a pass through basis at cost only. If such pricing is assessed directly against OCC, *** to be paid by the relevant Hotel in accordance with Sections 8.6 and 8.8.
(a) Folio review. Folio review allows Guests to summon and examine the current status of their Hotel bills.
(b) Folio e-mail. Folio e-mail allows Guests to enter an e-mail address to which their folio will then be sent electronically.
(c) Video Checkout. Video checkout allows Guests to check out of the Hotel.
(f) Housekeeping Status. Housekeeping status allows the Hotel housekeeping staff to update room status to identify Rooms which have been cleaned or cleaned and vacated. All changes in Room status entered through the television are transmitted to the Hotel PMS for use by the front desk staff.
(g) Preview/Promotional Channel.
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(h) Hotel Information/Open Channels. Information/Open Channels allow the Hotel to display customized Hotel video, slides, announcements and other content to Guests which Hotel believes would be of interest to Guests. OCC will provide the Hotel with the use of at least *** such channels, and in no event fewer than the number of channels provided to the Hotel by OCC prior to this Agreement (if any).
(i) Parental Control.
(j) Multi-lingual Menu Capabilities. Guest menus can be viewed in English, Spanish, Japanese, French, or German. Other languages may be added as requested by Marriott with OCC’s consent, not to be unreasonably withheld.
9.7 Additional Provisions on Hotel Guest Services.
(a) OCC shall ensure that the System will not allow a Guest to access any message, folio, pay movie, or checkout function or any other service other than those which are applicable to the Room from which access is initiated. OCC shall provide filters, traps, or some other mechanism sufficient to prevent TVs not intended to provide System services or TVs in public areas from receiving images or information intended for System TVs.
(b) Precise technical specifications for Hotel Guest Services shall be documented and agreed to by Marriott and OCC prior to such Services being implemented in any Hotel. Such specifications shall include a functional description of how the Hotel Guest Services will work and the Guest’s interaction with them, data formats, and data communications protocols, as reasonably required for purposes of interfacing with the Hotel PMS.
(c) OCC will use reasonable efforts to keep Hotel Guest Services current with changes required to each Hotel PMS. No changes to Hotel Guest Services shall be made by OCC without prior written approval from Marriott. All acceptance testing and certification of the suitability of Hotel Guest Services or Hotel Guest Services technical specifications shall be subject to approval by Marriott..
ARTICLE X. MATV SYSTEM; HOTEL PMS
10.1 MATV Initial Upgrade. If a relevant Hotel’s MATV System needs to be upgraded in order to be compatible with the System (which may require the relocation of an existing satellite
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dish)***. OCC shall not effect any such upgrade without prior notice to and consent of Marriott or the Hotel.
10.2 MATV Maintenance and Upgrades. Following the Hotel Commencement Date for the relevant Hotel, and subject to the other terms and conditions of this Agreement, OCC shall *** maintain the MATV System in good working order (including maintenance of signal quality to the extent within the reasonable ability of OCC to do so) and perform any upgrades thereto, deemed necessary in the reasonable discretion of OCC after consultation with and the consent of Marriott, not to be unreasonably withheld.
10.4 Hotel PMS Interface. OCC will provide the necessary software, ***, to enable the System (including without limitation the Generation III Platform) to interface with the Hotel PMS that Marriott has authorized for use in the Hotels as of the Effective Date (“Standard Hotel PMS”). If, at the time OCC installs the System, the System (including the Monitoring Unit) is not compatible with any Standard Hotel PMS, *** for the purchase and maintenance of any additional hardware or software that may be required to make the System and the Standard Hotel PMS compatible with one another. If, at the time OCC installs the System, any Hotel PMS other than a Standard Hotel PMS (a “Non-Conforming Hotel PMS”) is not compatible with the System (including the Monitoring Unit), *** for the purchase and maintenance of any additional hardware or software that may be required to make the Non-Conforming Hotel PMS and the System compatible with one another. If the Hotel does not take the requisite actions hereunder to enable OCC to connect the System with the Non-Conforming Hotel PMS, the Access Record shall be conclusive evidence of System usage for all relevant purposes under this Agreement. In the event that Marriott or the Hotel alters the Hotel PMS during the Term, Hotel agrees*** to reconnect the System interface with the Hotel PMS.
ARTICLE XI.OWNERSHIP OF THE SYSTEM
11.1 Sole and Exclusive Property.
(a) The System and all equipment, materials and engineering related thereto that are provided by OCC (excluding any Hotel Installed Property that may be provided by OCC) are the sole and exclusive property of OCC, and Marriott shall not place nor allow to be placed any lien, restriction, encumbrance, mortgage, claim or security interest to be attached to or be made against the System or any such related properties.
(b) OCC shall have no claim to any software which runs on a computer, data communications device, or other equipment owned or principally used by Marriott. Marriott shall have no claim to any software which runs on a computer, data communications device, or
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other equipment owned or principally used by OCC. Unless agreed to the contrary in writing, neither party shall have an exclusive claim on any computer interfaces, networking protocols, or data transmissions standards used in connecting OCC computer equipment with Marriott computer equipment. Both parties shall be free to used such interfaces, protocols, or standards as each see fit.
(a) Upon expiration or termination of this Agreement, OCC agrees *** of termination or expiration. If requested by Marriott, OCC shall schedule and handle System removal so as to allow for an orderly transition to an alternative operator. In that event, the terms of this Agreement shall no longer apply and the parties shall negotiate in good faith as to the terms which will govern their transition period relationship. If the parties do not reach agreement, ***. OCC shall continue to provide Marriott’s requested services during the period of transition, and Marriott, on a current basis, shall pay to OCC ***. Any award made under 22.3 shall relate back to the first day upon which this Agreement shall have expired or terminated. OCC further agrees that System removal shall be conducted by OCC as expeditiously as possible with minimum interruption of Hotel TV or MATV offered to guests. System removal will be handled ***.
(b) If OCC adds to or modifies any part of the MATV system, cabling, amplifiers, wall taps, or any other equipment for the reception and distribution of video or audio which is not exclusively a part of the System, the Hotel may elect to leave the addition or modification in place in which case ownership of said addition or modification shall transfer to Hotel. OCC shall provide written documentation to Hotel detailing changes to the MATV System or other Hotel equipment.
(c) Upon termination of this Agreement, Marriott shall take all reasonable actions necessary to allow OCC to remove the System promptly.
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MATV System, and the operations of the Hotel. OCC shall not be responsible to Marriott or the Hotel for any lost revenue incurred as a result of OCC’s removing the System pursuant to this Section. If the System is removed from the Hotel under this Section, OCC shall return the System to the Hotel once such danger or other threatening event ceases to exist.
ARTICLE XII. HOTEL FACILITIES; COMPLIMENTARY ROOMS
ARTICLE XIII. OPERATION AND MAINTENANCE OF THE SYSTEM
13.1 Notification of System Failure. Marriott shall cause Hotel personnel to notify OCC promptly by telephone of any failure of the System, as a whole or any component thereof, including, without limitation, any failure of any System functions in any Room. Marriott shall cause the Hotel to create and maintain an accurate record of each instance of System failure or malfunction. For the purpose of such notification, Hotel staff shall call a toll free telephone
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number provided by OCC which shall be attended twenty-four hours a day seven days a week by OCC staff having the capability of expeditiously dispatching OCC service personnel to the Hotel.
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power (the “Power-Up Screen”). Marriott or the Hotel shall not display nor allow to be displayed material of any kind on the Power-Up Screen without the prior consent of OCC, not to be unreasonably withheld.
(a) Hotel staff shall be responsible for swapping inoperable System TVs with spares maintained in inventory at the Hotel for situations in which a single System TV has failed. As described herein, OCC shall be responsible for diagnosing and repairing failures involving groups of System TVs.
(b) OCC shall provide on-going service and maintenance for all System TVs in each Hotel, ***. OCC shall contract with a TV service or maintenance organization reasonably acceptable to Marriott for TV repair work.
(c) Upon being notified by Marriott that a repair or service is required at any Hotel, OCC shall immediately initiate the repair or service, either remotely or by dispatching repair representative(s) to the Hotel if the repair or service cannot be performed remotely (in which event it shall be incumbent on OCC to ensure that these representatives arrive at the Hotel within *** of the time OCC is notified of the service requirement unless such representatives are delayed in transit by Force Majeure). *** OCC’s service representatives shall immediately undertake necessary repairs, either remotely or at the Hotel, to return the System to good working order and said repair services shall be completed within *** of the time OCC is initially notified of the System breakdown unless by reason of fire, accident, natural disaster, or similar cause, the Hotel or the System has been substantially destroyed.
(d) Marriott shall allow authorized personnel of OCC to have access to the Hotel premises and equipment maintained by OCC in order to conduct routine maintenance, observation and monitoring, to ensure suitable operating conditions and to implement improvements in the System and the MATV System. OCC access to all Hotel premises and equipment shall be in accordance with procedures agreed to by each Hotel.
(e) If, during the Term, OCC desires to change any component of the System or the MATV System to improve service or to take advantage of technological advancements, OCC shall, in writing, describe to Marriott the plans and specifications for the installation thereof ***. No changes to the equipment, cabling, or software shall be made by OCC without written approval from Marriott, which approval shall not be unreasonably withheld. Such changes approved by Marriott shall be made without disruption of Hotel TVs or MATV service and with minimum interruption of the In-Room Electronic Services.
(f) OCC shall install, operate, and maintain the System and MATV components provided by OCC in accordance with their reasonable technical specifications (including the Specifications).
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(g) ***
13.8 Reporting. OCC shall deliver to Marriott the following reports sorted by Hotel name.
(a) On a monthly basis, OCC shall report on:
(i) All service and maintenance calls received from Hotels including the date, caller, problem reported, status, and resolution.
(ii) Usage levels (by Hotel and for all Hotels) for each System function or category (e.g., Adult or non-Adult), gross system revenue, revenue per occupied Room, and the number or Pay-Per-Usage Services purchased in each price tier.
(b) On a quarterly basis, OCC shall report on:
(i) Revenue received by Hotels.
(ii) Hotels which are currently served by OCC, and the expiration date for each Hotel.
(iii) Additional Revenue, and Net Additional Revenues, for the quarter and year-to-date, with notes
(c) In addition to providing the reports in printed form, OCC shall provide them electronically in a format agreed to by Marriott and OCC.
(d) OCC shall provide such other reasonable reports and information as Marriott may request, to the extent such reports and information are readily available to, or can be readily generated by, OCC.
(e) In addition, the parties shall conduct such meetings as Marriott may reasonably request to review the status of the Services, the System, the usage thereof by hotel customers, the trends in the industry, and similar matters.
13.9 Marriott Account Support. OCC will provide ***. The initial assignment, replacement, and reassignment of such person shall be subject to Marriott’s approval, not to be unreasonably withheld. Such person’s duties shall include coordinating installation and rollout activities, supporting the delivery of the Services, coordinating internal communications within Marriott relating to the Services, and such other duties and functions relating to support for the Services as Marriott may reasonably request.
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(a) Such security shall include the following, to the extent achievable through reasonable efforts:
(i) Room to Room Security — To isolate data travelling to different Guests to prevent a Guest from viewing another Guest room’s traffic. From every location, OCC will block all packets destined for another room in the hotel and block all packets coming from another room in the hotel. This security will be in place except when the Guest or Hotel requests value-added service involving the networking of computers within the hotel (i.e. the Guest explicitly disabled this security.)
(ii) Hotel to Room Security — To prevent a Guest from being subject to a security risk from the Hotel network. OCC will not allow unauthorized data traffic to pass from the Hotel to the Guest. The Hotel shall be responsible for physical security of the router, switch, the management computer, and other network access points.
(iii) Internet to Room Security — To prevent a Guest from being subject to a security risk from the Internet which risk is not explicitly created by the Guest or inherent in the Guest’s own action such as downloading an Email message containing a virus.
(iv) Room to Hotel Security — To completely isolate data travelling to/from any Guest room in a Hotel to the Hotel’s local area network (“LAN”). From every room location, OCC will block all packets destined for the Hotel LAN and block all packets coming from the Hotel LAN back to any room.
(v) Internet to Hotel Security — To prevent a Hotel from being subject to a security risk from the Internet which is not explicitly created by the Hotel or inherent in the Hotel’s own action such as downloading an Email message containing a virus.
(b) Without limiting the other provisions of this Section, OCC will implement reasonable intrusion detection and security information logging measures, including: OCC will log and report, in real time to Marriott MCNC, all attempts to gain access to the Hotel LAN by any room or Internet connection. OCC will immediately deactivate any connection to the Hotel LAN upon detection of attempts to gain unauthorized access to the LAN by any room or Internet connection. OCC will not reactivate any connections without obtaining Marriott’s prior approval.
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ARTICLE XIV. PUBLICITY REGARDING THE SYSTEM
14.1 Adequate Publicity. Marriott shall, and shall cause Hotel personnel to, adequately publicize to the Guests the existence of and access to the Services. The manner and nature of such publicity shall be at Marriott’s reasonable discretion. Marriott hereby acknowledges that the success of the Pay-Per-Usage Services depends upon the marketing of the Pay-Per-Usage Services and the responding of Hotel personnel to Guest inquiries in a such a manner as to encourage Guests’ use and enjoyment of the Services.
ARTICLE XV. TRAINING AND CONSULTATION
ARTICLE XVI. SPECIAL WARRANTIES AND COVENANTS OF HOTEL
16.1 No Public Exhibition. Except as otherwise set forth in this Agreement or as expressly authorized by the applicable copyright holder or licensor, the Services shall be exhibited only in the Rooms, and not in any public areas or lounges of the Hotel (including, without limitation, lobbies, hallways, restaurants, bars, meeting rooms, exercise facilities, etc.). No Service shall be exhibited other than in compliance with this Agreement.
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with, and hereby assigns to OCC any prosecution rights it or a relevant Hotel may have with respect to, any criminal investigation, arrest or trial arising out of or relating to any criminal act perpetrated upon any portion of the System.
(a) Marriott and/or the relevant Hotel shall obtain and maintain, at its sole cost and expense, throughout the term of this Agreement, insurance policies from carriers with an AM Best rating of A-/X or better, that name OCC as an additional insured thereunder (as its interest
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may appear for property insurance purposes, and to the extent of Marriott’s indemnity obligations for commercial general liability purposes). Said policies shall provide commercial general liability insurance with limits of at least *** and property insurance with a limit of at least *** providing coverage for the perils of fire, extended coverage and special form. A certificate of insurance evidencing such insurance shall be delivered to OCC within thirty (30) days of Hotel’s receipt of such certificate of insurance.
(b) OCC shall obtain and maintain, at its sole cost and expense, throughout the term of this Agreement, insurance policies from carriers with an AM Best rating of A-/X or better, that name the Hotels and Marriott as an additional insured thereunder (as their interests may appear for property insurance purposes, and to the extent of OCC’s indemnity obligations for commercial general liability purposes). Said policies shall provide comprehensive public liability insurance with limits of at least *** and property insurance with a limit of at least *** providing coverage for the perils of fire, extended coverage and special form. A certificate of insurance evidencing such insurance delivered to Marriott within thirty (30) days of OCC’s receipt of such certificate of insurance.
ARTICLE XVIII. CONFIDENTIALITY
(a) Marriott and its employees and agents have maintained and will maintain, in confidence, the terms and conditions of this Agreement including the revenue sharing provisions, as well as all data, summaries, reports or information of all kinds, whether oral or written, acquired, devised or developed in any manner by or from OCC personnel or OCC files, and have not and will not reveal the same to any persons not employed by OCC, except: (i) at the written direction of OCC; (ii) to the extent necessary to comply with law or order of a court of competent jurisdiction, in which event Marriott shall so notify OCC as promptly as practicable (and, if possible, prior to making any disclosure) and in all cases shall cooperate with OCC if OCC should seek confidential treatment of such information; (iii) to its auditors, attorneys, and other representatives, provided such auditors, attorneys and other representatives agree to be bound by the provisions of this Paragraph; (iv) to the owners of Hotels and to the owners and operators of Marriott Franchised Hotels as reasonably necessary to describe and promote the Services and to comply with Marriott’s obligations under management and franchise agreements and under applicable law; and (v) in order to enforce its rights pursuant to this Agreement.
(b) OCC and its employees and agents have maintained and will maintain, in confidence, the terms and conditions of this Agreement, as well as all data, summaries, reports or information of all kinds, whether oral or written, acquired, devised or developed in any manner by or from Marriott personnel or Marriott files, and have not and will not reveal the same to any persons not employed by Marriott, except: (i) at the written direction of Marriott; (ii) to the extent necessary to comply with law or order of a court of competent jurisdiction, in which event
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OCC shall so notify Marriott as promptly as practicable (and, if possible, prior to making any disclosure) and in all cases shall cooperate with Marriott if Marriott should seek confidential treatment of such information; (iii) to its auditors, attorneys, and other representatives, provided such auditors, attorneys and other representatives agree to be bound by the provisions of this Paragraph; and (iv) in order to enforce its rights pursuant to this Agreement..
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assign, convey, or otherwise transfer any Marriott Property in any manner other than as expressly instructed by Marriott in writing or as otherwise permitted by this Agreement.
(a) If the work products were created pursuant to a separate written agreement between the parties relating to ownership rights, such agreement shall control.
(b) In the absence of such a separate written agreement,
(i) OCC shall own such work products generated by OCC in the performance of the Services except as provided in the following paragraph. Marriott agrees to execute such documents, and otherwise provide such assistance, as OCC may reasonably request, at OCC’s expense, to accomplish the purposes of this paragraph.
(ii) Marriott will own work products that were custom-created for delivery to Marriott for Marriott’s specific use, provided that OCC shall have the right to re-use for its own benefit any items from such work products that (A) are of a generic nature and not customized specifically for Marriott, and (B) do not contain, and were not created through substantial use of, Marriott confidential information. OCC hereby assigns all right, title and interest (including copyright and patent rights) thereto to Marriott. OCC agrees to execute such documents, and otherwise provide such assistance, as Marriott may reasonably request, at Marriott’s expense, to accomplish the purposes of this paragraph.
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(a) The Access Record shall be deemed the confidential information of each party. OCC shall make available to Marriott information sufficient to ensure proper billing of Guests and other information or usage reports as Marriott may reasonably request to track System usage.
(b) OCC may review and use the Access Record as necessary to provide the Services and for such other internal analytical, statistical, performance, and business purposes as OCC may reasonably deem appropriate, except that OCC shall not use such Service Record for purposes of contacting Marriott customers and shall not sell, lease, or transfer such information to third parties, nor make any external use of this information in a form which will particularly identify Marriott or its customers.
ARTICLE XX. DEFAULT; FORCE MAJEURE
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default within thirty (30) calendar days after receipt of a written notice specifying the nature of such breach or default from Marriott, (ii) be adjudicated bankrupt or petition for relief under any bankruptcy, reorganization, receivership, liquidation, compromise arrangement or moratorium statue; (iii) make an assignment for the benefit of its creditors; or (iv) petition for the appointment of a receiver, liquidator, trustee or custodian for all or part of its assets; then, in any of such events, Marriott may exercise any or all of the following remedies: (A) on not less than thirty (30) days’ advance written notice to OCC, cancel and terminate this Agreement as to the affected Hotels (in the case of a breach that affects only certain Hotels) or in its entirety (in the case of a breach that affects a significant number of Hotels or the System or that relates to OCC’s obligations that are not specific to the Hotels) and require OCC to promptly remove the System from the terminated Hotels or all Hotels, as the case may be; (B) seek injunctive and other equitable relief; and (C) seek such damages and other rights and remedies as Marriott and/or the affected Hotel(s) may have under this Agreement.
(a) Each party shall indemnify, defend and hold harmless the other party and its officers, directors, employees and affiliates from any and all losses, costs, damages and expenses (including, without limitation, reasonable attorneys’ fees and settlement costs) relating to, resulting from or arising out of or in connection with any violation or infringement by any indemnifying party or its officers directors, employees or affiliates of any intellectual property rights of any third party (including patent, copyright, trademark, and trade secret rights).
(b) If the System or any part thereof becomes, or in the opinion of OCC may become, the subject of any claim, suit or proceeding for violation or infringement of intellectual property
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rights of a third party, or in the event of an adjudication that the System or part thereof constitutes such an infringement or violation, or if the use, license, lease or sale of the System or part thereof is enjoined, OCC shall, at its expense and without limiting any of the other rights Marriott may have hereunder: (1) procure for Marriott the rights otherwise granted under this Agreement to the System or part thereof, or (2) replace, modify, or remove the System or part thereof to remedy the infringement or violation. If Marriott determines, in its sole discretion, that such replacement, modification, or removal will have a significant negative impact on the overall functioning of the System, Marriott shall have, in addition to its other rights under this Agreement and without liability to Marriott, the right to terminate this Agreement on thirty (30) days prior written notice. Such right to terminate as set forth in this Section shall only apply if such negative impact is not due to Force Majeure.
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(a) Promptly after receipt by any entity entitled to indemnification under this Agreement of notice of the commencement or threatened commencement of any civil, criminal, administrative, or investigative action or proceeding involving a claim in respect of which the indemnitee will seek indemnification, the indemnitee shall notify the indemnitor of such claim in writing. No failure to so notify an indemnitor shall relieve it of its obligations under this Agreement except to the extent that it can demonstrate damages attributable to such failure. Within fifteen (15) days following receipt of written notice from the indemnitee relating to any claim, but no later than ten (10) days before the date on which any response to a complaint or summons is due, the indemnitor shall notify the indemnitee in writing if the indemnitor elects to assume control of the defense and settlement of that claim (a “Notice of Election”).
(b) If the indemnitor delivers a Notice of Election relating to any claim within the required notice period, the indemnitor shall be entitled to have sole control over the defense and settlement of such claim; provided that (a) the indemnitee shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim, and (b) the indemnitor shall obtain the prior written approval of the indemnitee before entering into any settlement of such claim or ceasing to defend against such claim. After the indemnitor has delivered a Notice of Election relating to any claim in accordance with this Section, the indemnitor shall not be liable to the indemnitee for any legal expenses incurred by the indemnitee in connection with the defense of that claim. In addition, the indemnitor shall not be required to indemnify the indemnitee for any amount paid or payable by the indemnitee in the settlement of any claim for which the indemnitor has delivered a timely Notice of Election if such amount was agreed to without the written consent of the indemnitor.
(c) If the indemnitor does not deliver a Notice of Election relating to any claim within the required notice period, the indemnitee shall have the right to defend the claim in such manner as it may deem appropriate, at the cost and expense of the indemnitor. The indemnitor shall promptly reimburse the indemnitee for all such costs and expenses.
ARTICLE XXI. WARRANTIES; DISCLAIMER; LIMITATION OF LIABILITY
21.1 Warranties. OCC represents and warrants that the Services (including the System) will be provided as described in this Agreement, and that it will perform its responsibilities in a professional, workmanlike manner, through use of reasonable care, in compliance with applicable laws, ordinances, codes, and regulations, and without infringement or violation of the intellectual property rights of third parties (including patent, copyright, trademark, and trade secret rights). OCC further warrants and represents that all necessary corporate action has been taken to authorize OCC to enter into this Agreement and perform all of its obligations hereunder and further warrants and represents that this Agreement has been duly executed and delivered by it and constitutes a valid, legal and binding obligation of OCC, enforceable in accordance with its terms.
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LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
22.2 Choice of Laws. This Agreement will be governed by and interpreted in accordance with the substantive laws of the State of New York.
22.3 Arbitration. The parties agrees that any dispute or controversy arising out of or relating to the interpretation, construction, performance or breach of this Agreement that cannot be amicably resolved after good faith discussions shall be resolved by arbitration in accordance with this Section. The arbitration shall be held before a single arbitrator selected by the parties or, if the parties are unable to agree, by the American Arbitration Association (“AAA”), in accordance with the then current rules for arbitration of commercial disputes of the AAA. Unless the applicable parties otherwise agree in a particular instance, the arbitration shall be held in New York, New York. Discovery, if permitted by the arbitrator, shall be conducted in accordance with the Federal Rules of Civil Procedure, except that (1) there shall be no more than ten interrogatories (including subparts) per party, (2) document discovery shall be limited to documents directly relevant to the matter at issue, (3) each party shall be entitled to take no more than five depositions upon oral examination, which in the aggregate shall take no more than five business days, and (4) there shall be no requests to admit. The arbitrator shall schedule the arbitration to be completed no later than six months after initiation of the proceeding, and the parties shall use good faith efforts to comply with this schedule.
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(a) The decision of the arbitrator shall be in writing and shall specify reasons for the decision. Judgment upon the arbitral award may be confirmed by any court having jurisdiction over the party against which enforcement is sought.
(b) The arbitrator shall have no power to award punitive damages even if permitted to do so under applicable law.
(c) Any party may seek injunctive or other equitable relief to prevent any breach or threatened breach of another party’s obligations which would cause irreparable harm, or to preserve the jurisdiction of the arbitrator.
(a) Except as specifically provided in this Section, neither party may assign or delegate its rights or obligations under this Agreement without the written consent of the other party, not to be unreasonably withheld.
(b) Marriott may assign this Agreement without the consent of OCC (i) to any corporate affiliate of Marriott provided Marriott remains liable hereunder, (ii) upon a merger or consolidation involving Marriott, a sale of all or a major part of Marriott’s assets, or a sale of all or a major part of the assets of a line of business in which the Services are used (including the sale of a Covered Brand). Upon an assignment under clause (ii) above, the assignee shall assume in writing the obligations under this Agreement, in which event Marriott shall be released from further liability hereunder except for liabilities accrued prior to assignment.
(c) OCC shall be deemed to have assigned this Agreement with Marriott’s consent to an entity if such entity acquires ownership or effective control of OCC, provided, however, that such an assignment shall require Marriott’s consent if such an entity is a direct competitor of Marriott; if Marriott refuses such consent and OCC nonetheless desires to so assign this Agreement, Marriott’s sole and exclusive remedy shall be to terminate this Agreement without further liability hereunder except for satisfaction of payment obligations incurred prior to termination.
(d) In the event that any Hotel is sold to a new owner or is no longer managed by Marriott, the rights, obligations, terms and conditions of this Agreement shall remain in full force and effect and a permitted assignment of this Agreement shall be deemed to have occurred; provided, however, notwithstanding any such deemed assignment, Marriott shall not be released from and shall retain responsibility for any obligations or payments due to OCC which were incurred or arose prior to the effective date of any such sale or change in management company. The provisions of Section 4.6 (Departing Hotels) shall govern assignments under the preceding sentence.
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22.8 U.S. Dollars. All references to “dollars’ or the “$” sign refer to U.S. currency.
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If to OCC: | If to Marriott: | |
On Command Video Corporation | Marriott International, Inc. | |
0000 X. Xxxxx Xxxxxx | 00000 Xxxxxxxx Xxxx | |
Xxxxxx, XX 00000 | Xxxxxxxx, XX 00000 | |
ATTN: SVP- Sales | Attn: Senior Vice President, Rooms Operations | |
Telephone: (000) 000-0000 | Telephone: 000-000-0000 | |
Facsimile: (000) 000-0000 | Facsimile: 000-000-0000 | |
with a copy to: | with a copy to: | |
[same address as above] | [same address and facsimile as above] | |
Attn: General Counsel | Attn: Assistant General Counsel, U.S. | |
Telephone: (000) 000-0000 | Lodging Operations, 52-923 | |
Facsimile: (000) 000-0000 |
22.13 Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges and supersedes all prior discussions and understandings between the parties related thereto, whether written or oral.
ON COMMAND CORPORATION | MARRIOTT INTERNATIONAL, INC, on behalf of itself and its affiliates | |||||
By: | /s/ XXXXXX X. XXXX | By: | /s/ XXXXXXX XXXXXXX | |||
|
||||||
Name: | X.X. Xxxx | Name: | Xxxxxxx Xxxxxxx | |||
Title: | Chief Executive Officer | Title: | Senior Vice President | |||
Date: | March 21, 2001 | Date: | March 21, 2001 |
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1. | “Access Record” shall have the meaning given in Section 8.5. |
2. | “Adjusted Pay-Per-Usage Service Fees” means the Pay-Per-Usage Service Fees charged to the Guests by the Hotel, after giving effect to any Adjustments permitted under this Agreement. |
3. | “Adjustment” shall have the meaning given in Section 8.9. |
4. | “Agreement Term” shall have the meaning given in Section 2.1. |
5. | “Broadcast Lineups” shall have the meaning given in Section 9.4. |
6. | “Broadcast Programming Services” shall have the meaning given in Section 9.3. |
7. | “Cable Lineups” shall have the meaning given in Section 9.2. |
8. | “Cable Programming Services” shall have the meaning given in Section 9.2. |
9. | “Competing Service” means any system, device or service that is comparable to the In-Room Electronic Services (as presently configured, as may be modified from time to time pursuant to this Agreement) (including any video cassette recorder, game console, digital video disc player, electronic video service, data service that permits downstream data transfers at more than 128 kilobytes per second, or any device or service similar to any of the foregoing, but excluding any clock radio, stereo music console/equipment (e.g., stand-alone CD player for playing Guests’ CDs), the STSN Internet Access System (or substitute system for connecting guest computers to the Internet), and Virtual Personal Concierge. |
10. | “Control Devices” shall have the meaning given in Section 13.4. |
11. | “Covered Brand(s)” means one or more of the following brands owned by Marriott as of the Effective Date: Marriott Hotels, Resorts and Suites (including Marriott Conference Centers with 140 Rooms or more) (“MHRS”), Renaissance Hotels and Resorts (“Renaissance”), Courtyard by Marriott, Residence Inn by Marriott, Fairfield Inn & Suites by Marriott, TownePlace Suites by Marriott, SpringHill Suites by Marriott and Marriott Conference Centers with fewer than 140 Rooms. A new brand may be added as a Covered Brand pursuant to Section 4.3. |
12. | “Direct Programming Costs” shall have the meaning given in Section 9.2. |
13. | “Existing Hotels” shall mean Hotels that are managed or owned by Marriott as of the Effective Date. |
14. | “Existing OCC Agreement” shall have the meaning given in Section 4.2. |
15. | “Force Majeure” shall have the meaning given in Section 20.4. |
16. | “Free-to-Guest Services” shall have the meaning given in Section 9.1. |
17. | “Generation III Platform” shall mean the System’s technology platform as described in Exhibit H-1 attached hereto. including digital content servers for movies, games and |
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music, an integrated network, field upgrade capability, and appropriate security and privacy features. |
18. | “Guests” shall mean the guests of the Hotels. |
19. | “Hotel(s)” shall mean the hotels that are operated under a Covered Brand, within the Territory, and that are managed or owned by Marriott. Notwithstanding the foregoing, “Hotels” shall not include any hotel where ***. |
20. | “Hotel Commencement Date” shall have the meaning given in Section 2.2 |
21. | “Hotel Facilities” shall have the meaning given in Section 12.1. |
22. | “Hotel Installed Property” shall have the meaning given in the definition of System. |
23. | “Hotel PMS” shall have the meaning given in Section 8.4. |
24. | “Hotel Revenue Share” means the percent share of total monthly Adjusted Pay-Per-Usage Service Fees to be retained by Hotel after the payment of the OCC Revenue Share. |
25. | *** |
26. | “Hotel Term” shall have the meaning given in Section 2.2. |
27. | “Hotel Termination Date” shall have the meaning given in Section 2.2. |
28. | “Inappropriate Content” shall have the meaning given in Section 8.3. |
29. | “Inspection” shall have the meaning given in Section 8.12. |
30. | “Internet TV Portal” shall have the meaning given in Section 8.1. |
31. | "In-Room Electronic Services” shall mean Pay-Per-Usage Services and Free-To-Guest Services provided in Rooms to Guests. |
32. | “Keyboards” shall have the meaning given in Section 13.5. |
33. | “Marriott Franchised Hotels” shall have the meaning given in Section 4.4. |
34. | “Marriott Property” shall have the meaning given in Section 19.2. |
35. | “MATV System” shall mean the network of cables, wall taps, antennas and specially designed radio frequency signal processing components, which receive, process, amplify and distribute video and audio TV and FM signals from a central location to a multiplicity of TVs within the Hotel. |
36. | “Monitoring Unit” means an instrument provided, installed and maintained by OCC at OCC’s sole expense pursuant to the terms of this Agreement that monitors the use of the System by individual Guests and determines the Pay-Per-Usage Service Fees due and payable by each particular Guest. |
37. | "Net Additional Revenue” shall mean, for any period, all revenue received by OCC in respect of additional services provided under Section 8.7 of this Agreement***. In the event that Net Additional Revenue for any fiscal year is less than zero, then such negative amount shall not be carried forward to the subsequent fiscal year or any other future period. |
40
38. | “New Hotels” shall mean hotels that become “Hotels” after the Effective Date (i.e., Hotels that are not Existing Hotels). |
39. | “OCC Property” shall have the meaning given in Section 19.1. |
40. | “OCC Revenue Share” shall have the meaning given in Section 8.6. |
41. | “Pay-Per-Usage Service Fees” means the fees charged to the Guests for use of the Pay-Per-Usage Services. |
42. | “Pay-Per-Usage Services” shall have the meaning given in Section 8.1. |
43. | “Pilot Hotels” shall have the meaning given in Section 3.1. |
44. | “Preexisting Competitive Commitments” shall have the meaning given in Section 2.4. |
45. | “Protected Channels” shall have the meaning given in Section 9.2. |
46. | “Rated Movies” shall have the meaning given in Section 8.1. |
47. | “Retroactive System Upgrade” shall have the meaning given in Section 6.2. |
48. | “Room” means a separate, private, individually keyed room or suite of rooms in a Hotel, which is customarily available for an overnight sleeping accommodation for Guests. |
49. | “Select Service Brands” means one or more of the following Covered Brands: Residence Inn by Marriott, Fairfield Inn & Suites by Marriott, TownePlace Suites by Marriott, SpringHill Suites by Marriott and Marriott Conference Centers with fewer than 140 Rooms. A new brand may be added as a Select Service Brand pursuant to Section 4.3. |
50. | “Select Service Hotels” means hotels operated under a Select Service Brand. |
51. | “Services” means, collectively, the Pay-Per-Usage Services, the Free-to-Guest Services, and the other services and responsibilities described in this Agreement. |
52. | “Specifications” shall have the meaning given in Section 12.1. |
53. | “STSN” means Suite Technology System Networks, Inc., a Delaware corporation. |
54. | “STSN Internet Access System” means the system provided by STSN to provide Guests in Hotels with access to the Internet from Guest computers, which is installed or which is to be installed in Hotels pursuant to separate agreements between Marriott and STSN, including any successor system and any modifications and enhancements thereof. |
55. | “System” means an in-room electronic entertainment, information and business service technology platform which consists of hardware and software ***, to enable Guests to access the Services in each Room of the Hotel and to provide the Services described herein. The System shall initially be delivered on the Generation III Platform, and will be upgraded as provided in this Agreement. For purposes of clarification, the System does not include the Hotel Facilities, the MATV System, the STSN Internet Access System, or Virtual Personal Concierge. |
56. | “System TV” means a television receiving set supplied by the Hotel and connected to the System that (i) has a “smart plug” or “smart card” or (ii) is otherwise compatible with the System. |
41
57. | “System Upgrades” shall have the meaning given in Section 6.2. |
58. | "Termination Charge” shall have the meaning given in Section 20.3. |
59. | “Territory” shall mean the United States (including Puerto Rico but not any other territory or possession of the United States), Mexico and Canada. |
60. | "Upgrade Excess Costs” shall have the meaning given in Section 6.2. |
61. | "Virtual Personal Concierge” means an integrated, on-line service developed, owned and maintained by or on behalf of Marriott that may be provided to guests through the System and the System TV, and/or the STSN Internet Access System, Xxxxxxxx.xxx, personal computers and other access points, which may from time to time include providing concierge-style information and services to guests relating to goods and services outside the Hotel room, including travel, entertainment, dining, sightseeing, shopping, weather, and other such goods and services outside the Hotel; provided, however, that Virtual Personal Concierge shall not include entertainment delivery systems. Virtual Personal Concierge is not a part of the System. In the event that a guest accesses Virtual Personal Concierge through the links on the Internet TV Portal that are described in Section 8.1(c) and makes a purchase of goods or services, and OCC is also offering such goods or services through the Internet TV Portal, any transaction fees or commissions derived by Virtual Personal Concierge from the sale of such goods or services (for avoidance of doubt, excluding reservations at Marriott hotels) shall be treated as Additional Revenue under Section 8.7. |
42
EXHIBIT A
INSTALLATION PRIORITY
(SECTION 5.2)
***
EXHIBIT B
PAY-PER-USAGE SERVICE FEE
(SECTION 8.4)
1. | United States Hotels. The Pay-Per-Usage Service Fee shall be as follows for Hotels located in the United States: |
Pay-Per-Usage Service | ||||
as described in Section 8.1 | Pay-Per-Usage Service Fee | |||
Movies and Events – feature-length Movies |
*** | |||
Movies and Events – all others (e.g., short features) |
*** | |||
Video Games |
*** | |||
Internet TV |
*** | |||
Music On Demand |
*** | |||
Digital Music Network
Archived Television |
*** | |||
Time-Shifted Television |
*** |
***
On thirty days prior written notice to Marriott, OCC may increase the Pay-Per-Usage Fees after the first annual anniversary of the Acceptance Date, and annually thereafter, by no more than ***.
2. | Canada Hotels. The Pay-Per-Usage Service Fee for Hotels located in Canada shall be the fees set forth in the table above, converted to Canadian dollars using the then-current exchange rate as published in Currency Cross Rates table (or successor table) in the Wall Street Journal. |
3. | Fee Changes. If a OCC desires to change the Pay-Per-Usage Service Fee, it shall so notify Marriott in writing, and at Marriott’s request, shall advise Marriott of its reasons why it intends to make the proposed pricing change. If the parties are unable to reach agreement on a pricing change within 30 days of OCC’s submission of its reasons for the change, OCC may submit the matter to dispute resolution under Section 22.3 for a ruling consistent with the intent of the parties as described below. The parties shall endeavor in good faith to agree on expedited arbitration rules and procedures in order to resolve the pricing issue without major expense or delay. The intent of the parties is to set the Pay-Per-Usage Service Fee at a level that provides a reasonable opportunity to achieve the following, to the extent reasonably attainable: (i) increased revenues, (ii) high usage rates; (iii) high Guest satisfaction; (iv) positive brand image for both parties, and (v) keeping pace with changes in the competitive marketplace and in Guest expectations. |
EXHIBIT C
REVENUE SHARING
(SECTION 8.6)
***
EXHIBIT D
TAX SUMMARY
(SECTION 8.6)
State | State Taxing | Movie/PPV/ | Tax Type/Rate | |||||||||||||||||
Abbrev | Jurisdiction | Games Taxable | Entity Responsible for Tax | (Note 1) | ||||||||||||||||
AL | Alabama |
N | ||||||||||||||||||
AK | Alaska |
N | ||||||||||||||||||
AZ | Arizona |
Y | OnCommand responsible for remitting tax |
Trans. | ||||||||||||||||
Privilege/Var. | ||||||||||||||||||||
AR | Arkansas |
Y | OnCommand responsible for remitting tax |
Sales/Var. | ||||||||||||||||
CA | California |
N | ||||||||||||||||||
CO | Colorado |
Y | Hotel responsible for remitting tax |
Sales/Var. | ||||||||||||||||
CT | Connecticut |
Y | Hotel responsible for remitting tax |
Occupancy/Var. | ||||||||||||||||
DC | District of Columbia |
Y | OnCommand responsible for remitting tax |
G/R & Sales | ||||||||||||||||
DE | Delaware |
N | ||||||||||||||||||
FL | Florida |
Y | Hotel responsible for remitting tax |
Sales/Var. | ||||||||||||||||
GA | Georgia |
Y | Hotel and OCC responsible for |
Sales/Var. | ||||||||||||||||
remitting tax |
||||||||||||||||||||
HI | Hawaii |
Y | OnCommand responsible for remitting tax |
Excise | ||||||||||||||||
IL | Illinois |
N | ||||||||||||||||||
ID | Idaho |
N | ||||||||||||||||||
IN | Indiana |
Y | OnCommand responsible for remitting tax |
Sales/Var. | ||||||||||||||||
IA | Iowa |
Y | OnCommand responsible for remitting tax |
Sales/Var. | ||||||||||||||||
KS | Kansas |
Y | Hotel responsible for remitting tax |
Sales/Var. | ||||||||||||||||
KY | Kentucky |
N | ||||||||||||||||||
LA | Louisiana |
N | ||||||||||||||||||
ME | Maine |
N | ||||||||||||||||||
MD | Maryland |
Y | Hotel responsible for remitting tax |
Sales/Var. | ||||||||||||||||
MA | Massachusetts |
N |
State | State Taxing | Movie/PPV/ | Tax Type/Rate | |||||||||||||||||
Abbrev | Jurisdiction | Games Taxable | Entity Responsible for Tax | (Note 1) | ||||||||||||||||
MI | Michigan |
N | ||||||||||||||||||
MN | Minnesota |
Y | OnCommand responsible for remitting tax |
Sales/Var. | ||||||||||||||||
MS | Mississippi |
Y | Hotel responsible for remitting tax |
Sales/Var. | ||||||||||||||||
MO | Missouri |
Y | Hotel responsible for remitting tax |
Sales/Var. | ||||||||||||||||
MT | Montana |
N | ||||||||||||||||||
NE | Nebraska |
Y | OnCommand responsible for remitting tax |
Sales/Var. | ||||||||||||||||
NV | Nevada |
N | ||||||||||||||||||
NH | New Hampshire |
N | ||||||||||||||||||
NJ | New Jersey |
Y | OnCommand responsible for remitting tax |
Sales/Var. | ||||||||||||||||
NM | New Mexico |
Y | OnCommand responsible for remitting tax |
Gr. Receipt/Var. | ||||||||||||||||
NY | New York |
Y | Hotel responsible for remitting tax |
Occupancy/Var. | ||||||||||||||||
NC | North Carolina |
N | ||||||||||||||||||
ND | North Dakota |
Y | OnCommand responsible for remitting tax |
Sales/Var. | ||||||||||||||||
OH | Ohio |
N | ||||||||||||||||||
OK | Oklahoma |
N | ||||||||||||||||||
OR | Oregon |
N | ||||||||||||||||||
PA | Pennsylvania |
Y | Hotel responsible for remitting tax |
Sales/Var. | ||||||||||||||||
RI | Rhode Island |
Y | OnCommand responsible for remitting tax |
Sales/Var. | ||||||||||||||||
SC | South Carolina |
Y | Hotel responsible for remitting tax |
Sales/Var. | ||||||||||||||||
SD | South Dakota |
Y | OnCommand responsible for remitting tax |
Sales/Var. | ||||||||||||||||
TN | Tennessee |
Y | Hotel responsible for remitting tax |
Sales/Var. | ||||||||||||||||
TX | Texas |
Y | OnCommand responsible for remitting tax |
Sales/Var. | ||||||||||||||||
UT | Utah |
Y | Sales/Var. | |||||||||||||||||
VT | Vermont |
Y | OnCommand responsible for remitting tax |
Amusement/Var. |
State | State Taxing | Movie/PPV/ | Tax Type/Rate | |||||||||||||||||
Abbrev | Jurisdiction | Games Taxable | Entity Responsible for Tax | (Note 1) | ||||||||||||||||
VA | Virginia |
Y | Hotel responsible for remitting tax |
Sales/Var. | ||||||||||||||||
WA | Washington |
Y | OnCommand responsible for remitting tax |
Bus & Occp./Var. | ||||||||||||||||
WV | West Virginia |
N | ||||||||||||||||||
WI | Wisconsin |
Y | OnCommand responsible for remitting tax |
Sales/Var. | ||||||||||||||||
WY | Wyoming |
Y | OnCommand responsible for remitting tax |
Sales/Var. |
Note 1: Tax rates will vary based on location of property.
EXHIBIT E-1
BASIC CABLE CHANNEL LINEUP
(SECTION 9.2)
Channels with an asterisk are Protected Channels under Section 9.2.
Marriott Full Service | Renaissance | Courtyard | ||||||
CNN | CNN |
CNN |
||||||
DISNEY | DISNEY |
DISNEY |
||||||
ESPN | ESPN |
ESPN |
||||||
HBO | HBO |
HBO |
||||||
TNT | TNT |
TNT |
||||||
WTBS | WTBS |
WTBS |
||||||
CNBC | CNBC |
CNBC |
||||||
MSNBC | MSNBC |
MSNBC |
||||||
CNN-H | CNN-H |
CNN-H |
||||||
TWC | TWC |
TWC |
||||||
USA | USA |
USA |
||||||
DISCOVERY | DISCOVERY |
DISCOVERY |
||||||
A&E |
A&E | A&E | ||||||
XXXX 0 | XXXX 0 |
XXXX 2 |
||||||
TRAVEL | TRAVEL |
TRAVEL |
||||||
GOLF | GOLF |
GOLF |
||||||
FOX FAMILY | FOX FAMILY |
FOX FAMILY |
||||||
HBO Family | HBO Family |
HBO Family |
||||||
History Channel | History Channel |
|||||||
*** |
*** | *** |
[Continued on next page]
SpringHill Suites | Residence Inn | TownePlace Suites | Fairfield Inn | |||||||||
CNN | CNN |
CNN |
CNN |
|||||||||
DISNEY | DISNEY |
DISNEY |
DISNEY |
|||||||||
ESPN | ESPN |
ESPN |
ESPN |
|||||||||
HBO | HBO |
HBO |
HBO |
|||||||||
TNT | TNT |
TNT |
TNT |
|||||||||
WTBS | WTBS |
WTBS |
WTBS |
|||||||||
CNBC | CNBC |
CNBC |
CNBC |
|||||||||
MSNBC | MSNBC |
MSNBC |
MSNBC |
|||||||||
CNN-H | CNN-H |
CNN-H |
CNN-H |
|||||||||
TWC | TWC |
TWC |
TWC |
|||||||||
USA | USA |
USA |
USA |
|||||||||
DISCOVERY | DISCOVERY |
DISCOVERY |
DISCOVERY |
|||||||||
A&E |
A&E | A&E | ||||||||||
XXXX 0 | XXXX 0 |
XXXX 2 |
||||||||||
TRAVEL | TRAVEL |
TRAVEL |
||||||||||
GOLF | GOLF |
GOLF |
||||||||||
NICK | NICK |
NICK |
||||||||||
*** |
*** | *** | *** |
EXHIBIT E-2
OPTIONAL EXPANDED CABLE LINEUP
(SECTION 9.2)
Channels with an asterisk are Protected Channels under Section 9.2.
A&E | ESPN | NICKELODEON | ||
BET | ESPN NEWS | SCI-FI | ||
CARTOON NETWORK | XXXX 0 | XXX | ||
XXXX | Fox Family | TNN | ||
CNN | FOX REGIONAL SPORTS | TNT | ||
CNNFN | Golf | TOON DISNEY | ||
CNNSI | HEADLINE NEWS | TRAVEL | ||
COMEDY CENTRAL | HBO | TWC | ||
CSPAN | HBO FAMILY | UNIVISION | ||
DISCOVERY | HISTORY CHANNEL | USA | ||
DISNEY | LIFETIME | VH-1 | ||
E! | MSNBC | |||
*** | MTV |
EXHIBIT E-3
BROADCAST LINEUP
(SECTION 9.3)
ABC
CBS
NBC
FOX
PBS, where available as an “off air” station
UPN, where available as an “off air” station
WB, where available as an “off air” station.
EXHIBIT F
Deliberately left blank
EXHIBIT G
TERMINATION CHARGES
(SECTION 20.3)
Termination Charge | ||||
Year of Hotel Term | (per Room) | |||
During Year Two |
*** | |||
During Year Three |
*** | |||
During Year Four |
*** | |||
During Year Five |
*** | |||
During Year Six and thereafter |
*** |
If a Hotel has undergone a Retroactive System Upgrade under Section 6.2, and has elected to extend its Hotel Term in order to deal with Upgrade Excess Costs, then the above table shall be modified so that ***
EXHIBIT H
GENERATION III PLATFORM
(APPENDIX)
• | *** |
EXHIBIT I
BUNDLED PRICING FOR PILOT HOTELS
(SECTION 8.13)
See attached