1
Exhibit 10.9
CONFORMED COPY
TECHNOLOGY SHARING AND LICENSE AGREEMENT
TECHNOLOGY SHARING AND LICENSE AGREEMENT (hereinafter the "AGREEMENT")
dated as of July 15, 1999, by and between MTV Networks ("MTVN") and InfoWorks
("INFOWORKS") each a division of Viacom International Inc., a Delaware
corporation ("VIACOM"), MTVN Online Inc., a subsidiary of Viacom ("MTVNO")
(MTVN, InfoWorks and MTVNO being collectively referred to herein as the
"LICENSOR"), on the one hand, and MTVN Online Partner I LLC, a Delaware limited
liability company ("VLLC") (the "LICENSEE") on the other.
This Agreement is delivered pursuant to the terms of the Organization
Agreement, of even date herewith (the "ORGANIZATION AGREEMENT"), among Liberty
Media Corporation, a Delaware corporation ("LIBERTY"), TCI Music, Inc., a
Delaware corporation ("TUNE"), MTVN, VLLC, MTVN Online Inc., a Delaware
corporation, Imagine Radio, Inc., a Delaware corporation ("IMAGINE"), SonicNet,
Inc., a Delaware corporation ("SONICNET"), The Box Worldwide Inc., a Florida
corporation ("BOX"), VJN LPTV Corp., a Delaware corporation, and MTVN Online
L.P., a Delaware limited partnership (the "PARTNERSHIP").
WHEREAS, the parties desire that Licensor grant to Licensee certain
rights with respect to the Licensed Products and Third Party Products (as such
terms are defined below) necessary for the operation of the Business (as defined
below) upon the terms and conditions set forth herein; and
WHEREAS, immediately after the execution of this Agreement, Licensee
shall assign to the Partnership all of Licensee's rights and obligations under
this Agreement other than its payment obligations under Section 2 (C) hereof;
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. CERTAIN DEFINITIONS
"AFFILIATE" shall have the meaning set forth in the Organization
Agreement.
"BUSINESS" shall have the meaning set forth in the Partnership
Agreement, as of the date of this Agreement.
"BUSINESS DAY" shall have the meaning set forth in the Partnership
Agreement.
"APPLICATIONS PROGRAMMING INTERFACE" or "API" means the specifications
of a Licensed Product which define the external programming
requirements necessary to interface between that Licensed Product and
other Object Code.
2
2
"CODE" shall mean Object Code and Source Code.
"CONTRIBUTED BUSINESS" shall mean the business contributed on the date
hereof directly or indirectly by Viacom and its Affiliates to the
Partnership.
"DERIVATIVE WORKS" shall mean all "derivative works" and "compilations"
within the meanings of such terms as defined in the U.S. Copyright Act
(17 U.S.C. Section 101 et seq.).
"DOCUMENTATION" (including its correlative "DOCUMENT") means the
current version of all available manuals and other materials in written
or machine-readable form that are owned as of the date hereof by
Licensor, relating to the methods of use or operation by end users and
operators of the Object Code of the Licensed Products.
"EXCLUDED PRODUCT" shall mean any technology, product or service which
is not owned exclusively by Licensor unless Licensor has the right to
sublicense such technology, product or service to a third party without
the payment of any fees or expenses.
"INTELLECTUAL PROPERTY" shall have the meaning set forth in the
Organization Agreement.
"LICENSED PRODUCTS" means all Subject Products delivered by Licensor to
Licensee during the period specified in Section 3.
"LICENSEE SERVICES" means the services conducted by Licensee
exclusively in the operation of the Business.
"LICENSOR PROPRIETARY OBJECT CODE" means all Object Code which Licensor
owns.
"MANAGEMENT COMMITTEE" shall have the meaning as set forth in the
Partnership Agreement.
"NEWCO STOCKHOLDERS AGREEMENT" shall have the meaning set forth in the
Parent Agreement.
"OBJECT CODE" shall mean (i) machine executable programming
instructions, substantially in binary form, which are intended to be
directly executable by a processor after suitable processing and
linking but without the intervening steps of compilation or assembly,
or (ii) other executable code (e.g., "byte code" and other intermediate
code forms in connection with interpretive languages).
"PARENT AGREEMENT" shall mean the Parent Agreement and Guaranty of even
date herewith among TCI Music, MTVN, Liberty, Box, SonicNet and the
Partnership.
"PARTNERSHIP AGREEMENT" shall mean the Agreement of Limited Partnership
of even date herewith among Licensee, Imagine, SonicNet and Box.
"REORGANIZATION" shall have the meaning set forth in the Parent
Agreement.
3
3
"PERSON" shall have the meaning set forth in the Organization
Agreement.
"REPRESENTATIVE" shall have the meaning as set forth in the Partnership
Agreement.
"SOURCE CODE" shall mean the human readable form of Code in which
programs have been written and related technical documentation,
including comments internal to such Code and descriptions external to
such Code that are useful for understanding and maintaining said
programs (for example, logic manuals, flow charts and principles of
operation).
"SUBJECT PRODUCTS" means all Licensor Proprietary Object Code
heretofore used in connection with the Contributed Business that is:
(a) necessary and/or appropriate for use in launching and
operating Licensee Services;
(b) embodied in development tools that were used to
develop, create, and enhance Licensed Products for
use in connection with Contributed Business; or
(c) an upgrade, enhancement, or modification to a Third
Party Product created by Licensor, and for which
Licensor has received all necessary rights to license
to Licensee as set forth in this Agreement.
Subject Products exclude: (i) Excluded Product; (ii) all development
tools, regardless of the creator, except those set forth in subsection
(b) above and (iii) Third Party Products or upgrades, enhancements, or
modifications to same, except those set forth in subsection (c) above.
"SUBSIDIARY" shall have the meaning set forth in the Partnership
Agreement.
"THIRD PARTY PRODUCTS" refers to computer software products and related
documentation licensed by Licensor from third parties, used by Licensor
as of the date hereof in connection with the Contributed Business and
available for use by Licensee under the terms of applicable license
agreements, which are necessary or appropriate for use in launching and
operating Licensee Services, including software products and related
documentation readily available in the marketplace pursuant to a
"shrink-wrap" license or similar form license agreement. For the
avoidance of doubt, the term "Third Party Products" shall not include
Licensed Products.
"TUNE STOCKHOLDER GROUP" shall have the meaning as set forth in the
Partnership Agreement.
Any capitalized term which is not specifically defined herein shall
have the meaning given to that term in the Organization Agreement.
4
4
SECTION 2. LICENSE GRANTS AND FEE
A. Licensed Products. Subject to the terms and conditions of this
Agreement, Licensor hereby grants to Licensee on a quitclaim
basis for the Term, a non-exclusive, non-transferable (except
as set forth in this Agreement) license to use the Licensed
Products, as they exist as of the date hereof, only for the
internal purposes of Licensee and its wholly-owned
Subsidiaries (which purposes shall include operating servers
accessed by end users of the Licensed Services) in the
operation of the Business.
B. Third Party Products. Subject to the terms and conditions of
this Agreement, and subject to the payment of applicable
third-party royalties or fees, if any, for which Licensee
shall be exclusively responsible, Licensor hereby grants to
Licensee the same license rights in respect of Third Party
Products, as they exist as of the date hereof (to the extent
that Licensor is legally entitled to sublicense or extend such
rights to Licensee as of the date hereof), as Licensor has
granted to Licensee in respect of the Licensed Products under
Section 2 (A) above. Licensee acknowledges and agrees that,
with respect to some Third Party Products, the grant to
Licensee of the rights specified in this Section 2 (B) may
require the consent of the owners of such Third Party
Products, and that such grant shall not be effective until
such consent has been obtained. Licensee agrees to comply with
all license and legal requirements that are applicable to it
with respect to Licensee's use of the Third Party Products.
C. License Fee. During the Term of this Agreement, Licensee shall
pay to Licensor a license fee of $10,000 per year which amount
shall be payable on the first business day following the end
of each such year.
D. Documentation. Subject to the terms and conditions of this
Agreement, Licensor hereby grants to Licensee on a quitclaim
basis for the Term, a non-exclusive, non-transferable (except
as expressly provided herein) right to:
(i) use, translate into foreign languages, display, reproduce
and distribute internally only in connection with its use of
the Licensed Products as permitted hereunder any
Documentation, as it exists as of the date hereof, relating to
the Licensed Products; and
(ii) upon receipt of prior written approval from Licensor,
which approval shall not be unreasonably withheld or delayed
(but may be conditioned upon provision of appropriate
nondisclosure undertakings), furnish to providers of services
to Licensee a copy of such Documentation.
E. APIs. Subject to the terms and conditions of this Agreement,
Licensor hereby grants to Licensee on a quitclaim basis for
the Term, a non-exclusive, non-transferable (except as
expressly provided herein) right to use and make copies of the
Application Programming Interfaces, as they exist as of the
date hereof, for the
5
5
sole purpose of developing software products for use only for
the internal purposes of Licensee (which purposes shall
include developing server software accessed by end users of
the Licensed Services) in the operation of the Business that
access, and/or interface with, such Application Programming
Interfaces.
F. Source Code Availability; Adaptation. Subject to the terms and
conditions of this Agreement:
(i) the licenses granted pursuant to Section 2 (A), (B) and
(E) include the right for Licensee to receive, use or make
copies of the Source Code for the Licensed Products and, to
the extent permitted under applicable agreements, the Third
Party Products.
(ii) The licenses granted pursuant to Sections 2 (A), (B), (D)
and (E) include the right for Licensee to adapt, alter,
modify, translate or otherwise create Derivative Works of the
Licensed Products, the Documentation, and, to such extent as
may be permitted under applicable agreements, the Third Party
Products, each such Derivative Work to be subject to all
restrictions, limitations and conditions of this Agreement
which are applicable to the item from which such Derivative
Work was prepared.
SECTION 3. SELECTION AND DELIVERY
From time to time during the Term, Licensor shall make available to
Licensee reasonable access to the Subject Products. If Licensee is
interested in any Subject Product, then during such period Licensee
shall request such Subject Product in writing in reasonable detail from
Licensor, and Licensor shall deliver the Subject Product for use
hereunder. Once a Subject Product has been delivered to Licensee, then
such Subject Product shall become a Licensed Product. Licensor
disclaims any obligations of maintenance or support with respect to the
Licensed Products and the Third-Party Products. To the extent permitted
by applicable agreements, Licensee may obtain maintenance and support
for the Third Party Products from the respective vendors thereof, at
Licensee's expense.
SECTION 4. INTELLECTUAL PROPERTY
A. Licensed Products Exclusive Property of Licensor. Licensee
recognizes and acknowledges Licensor's exclusive ownership and
title to the Licensed Products and Documentation and all
Intellectual Property therein. For all purposes of the
relationship between Licensor and Licensee created hereunder,
Licensor shall be deemed to be the sole and exclusive owner
thereof, subject only to the specific nonexclusive, terminable
rights granted to Licensee hereunder. Nothing contained in
this Agreement shall be construed to confer upon Licensee or
to vest in Licensee any right of ownership in the Licensed
Products or Documentation or to any Intellectual Property of
Licensor, and Licensee shall not, directly or indirectly,
register or cause to be registered, in any country or with any
governmental
6
6
authority any Intellectual Property Right in any subject
matter consisting of or substantially similar to any of the
Licensed Products or Documentation. Licensee agrees that all
goodwill resulting from the use by it of the Licensed Products
or Documentation and Intellectual Property therein shall inure
solely to the benefit of Licensor.
B. No Challenge. During the Term and thereafter, Licensee will
not, and will not assist any Person to: (i) challenge the
validity or Licensor's ownership of the Licensed Products or
Documentation or Licensor's Intellectual Property therein;
(ii) contest the fact that Licensee's rights under this
Agreement are solely those of a licensee and terminate upon
termination or expiration of this Agreement; and (iii)
represent in any manner that it has any right in or to the
Licensed Products or Documentation in any manner except as set
forth in this Agreement.
C. Licensee Developments. Title to all Derivative Works based on
the Licensed Products or Documentation which have been created
solely by or for Licensee, shall be the property of Licensee,
subject to Licensor's ownership rights in all preexisting
materials included therein.
D. Proprietary Notices. Licensee agrees not to obfuscate, remove
or alter any of the patent, copyright, trademark, trade
secret, proprietary and other legal notices contained, in or
displayed by the use of, the Licensed Products, Documentation
or Third Party Products. Licensee further agrees to produce,
in each copy of the Licensed Products, Documentation or Third
Party Products that is made by Licensee, such patent,
copyright, trademark, trade secret, proprietary and other
legal notices that are properly included in the Licensed
Products, Documentation or Third Party Products, as provided
by Licensor to Licensee.
E. Compliance with Encryption and Export/Import Laws. Licensee
shall comply, and Licensee shall require all third parties
permitted access to Licensed Products, Documentation or Third
Party Products hereunder to comply, with all of then-current
applicable laws, rules and regulations of the United States
(and any other countries having jurisdiction) relating to the
use of encryption technology and the import and export of
technology, software and technical data, including, but not
limited to, any regulations of the United States Office of
Export Administration, to the extent permitted by applicable
law in the applicable jurisdiction, and of any other
applicable governmental authority, and shall not export or
re-export any technology, software, technical data or the
direct product of such technology, software and technical data
to any proscribed country listed in such applicable laws,
regulations and rules unless properly authorized.
7
7
SECTION 5. TERM
The Term of this Agreement shall commence on the date hereof, and
unless earlier terminated pursuant to Section 6 hereof, terminate on
the fiftieth anniversary of the date hereof.
SECTION 6. TERMINATION
A. Automatic Termination. This Agreement shall terminate
automatically in the event of any insolvency of Licensee, or
upon the appointment of any receiver, administrator,
liquidator, or trustee to take possession of the properties of
Licensee or upon the winding-up, sale, consolidation, merger
or any sequestration by governmental authority of Licensee.
B. Partial Termination. Licensor shall have the right to
terminate this Agreement as to any Licensed Product, Third
Party Product or item of Documentation under the circumstances
set forth in Section 8 (A), upon written notice to Licensee.
C. Termination for Breach. Licensor shall have the right to
terminate this Agreement, upon thirty days notice to Licensee,
in the event (a) of the breach of any material provision
hereof by Licensee which has remained uncured for thirty (30)
days following notice of such breach from Licensor or (b) the
Business is completely discontinued; provided, however, that
if any such event shall occur and remain uncured after such
initial 30 day cure period, then, if at the time of such
breach, Licensor owned a majority of outstanding equity
ownership of Licensee and at such time the Tune Stockholder
Group met the Tune Minimum Condition (as defined in the
Partnership Agreement) then, Licensor shall give further
written notice thereof to the Tune Stockholder Group and
Licensee, and Tune shall in accordance with the provisions of
the Partnership Agreement have an additional period of thirty
(30) days to effect such cure and Licensor shall not be
entitled to terminate this Agreement until the conclusion of
such additional 30 day cure period.
D. Effect of Termination.
(i) Termination of Rights. Upon expiration or termination of
this Agreement for any reason, Licensee's right to use the
Licensed Products, the Documentation and the Third Party
Products will terminate immediately, and this Agreement shall
cease, except that all obligations of the parties under this
Agreement which accrue or are due with respect to periods
prior to, or as of, such termination or expiration, and all
obligations which expressly survive the expiration or
termination of this Agreement shall continue in full force and
effect subsequent to and notwithstanding the expiration or
termination of this Agreement.
(ii) Use of Licensed Products. Upon expiration or termination
of this Agreement for any reason, Licensee shall discontinue
immediately all use of the
8
8
Licensed Products, the Documentation and the Third Party
Products, cooperate with Licensor and any of its appointed
agents to inform the appropriate authorities of such
termination and destroy all materials that contain, refer to
or relate to the Licensed Products, the Documentation and the
Third Party Products, whether provided to Licensee by Licensor
or created or developed by Licensee or by any third party, or
shall certify the destruction of all such materials, except to
the extent that such materials constitute Licensee
Developments as defined in Section 4 (C) above. All rights in
the Licensed Products and the Documentation shall remain the
property of Licensor upon expiration or termination.
SECTION 7. REPRESENTATIONS WARRANTIES; DISCLAIMER
A. Licensor's Representations and Warranties. Licensor
represents and warrants that to the best of Licensor's
knowledge, Licensor has the right to grant the rights to the
Licensed Products, the Documentation and the Third Party
Products which are granted to Licensee herein. EXCEPT AS
STATED IN THE PRECEDING SENTENCE, THE LICENSED PRODUCTS,
DOCUMENTATION AND THIRD PARTY PRODUCTS ARE PROVIDED TO
LICENSEE "AS IS," AND LICENSOR MAKES NO WARRANTIES OF ANY
KIND, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER INCLUDING,
BUT NOT LIMITED TO, WHETHER THE LICENSED PRODUCTS WILL
FUNCTION IN ACCORDANCE WITH THE DOCUMENTATION OR ANY RESULTS
OBTAINABLE FROM THE USE OF ANY TECHNOLOGY LICENSED TO LICENSEE
UNDER THIS AGREEMENT, AND DISCLAIMS ANY AND ALL EXPRESS OR
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD-PARTY
INTELLECTUAL PROPERTY.
B. Licensee's Representations and Warranties. Licensee represents
and warrants that:
(i) Licensee is a limited liability company duly formed,
validly existing and in good standing as a limited liability
company under the laws of the State of Delaware and has the
requisite power and authority to own, lease and operate its
assets and its businesses as currently being conducted.
(ii) Licensee has the requisite power and authority to enter
into and perform this Agreement; the execution, delivery and
performance by Licensee of this Agreement have been duly
authorized by all required action on its part and, if
required, by its sole member, and this Agreement has been duly
executed and delivered by it.
(iii) This Agreement is a legal, valid and binding obligation
of Licensee enforceable against Licensee in accordance with
its terms.
9
9
(iv) Licensee shall not make any direct or indirect use of the
Licensed Products, Documentation or Third Party Products other
than as permitted in this Agreement.
C. No Right to Extend Warranties. LICENSEE IS NOT AUTHORIZED TO,
AND SHALL NOT MAKE ANY WARRANTY ON BEHALF OF LICENSOR, EXPRESS
OR IMPLIED, TO ANY PERSON CONCERNING THE APPLICATION OF OR THE
RESULTS TO BE OBTAINED WITH THE TECHNOLOGY LICENSED TO
LICENSEE UNDER THIS AGREEMENT.
SECTION 8. INFRINGEMENT
A. Prevention of Infringement of Third-Party Rights. In the event
that the use of any Licensed Product, Documentation or Third
Party Product results, or in Licensor's reasonable opinion is
likely to result, in an infringement or violation of any third
party's Intellectual Property, or a breach of any license
obligation of Licensor with respect to a Third Party Product,
Licensor, at its option, may (i) modify the item in question
so that it avoids any such infringement, (ii) replace the item
in question with an alternative item that avoids such
infringement, violation or breach, or (iii) request return of
the item in question and terminate the license granted herein
with respect thereto, provided, however, that Licensor shall
not be obligated to make any expenditure in connection with
any of the foregoing, and shall in no event have any liability
for any claim of intellectual property infringement or trade
secret misappropriation arising out of Licensee's use of the
Licensed Products, Documentation or Third Party Products
hereunder, or for any claim by Licensee for impairment or loss
of use of the item in question due to any such modification,
replacement or termination.
B. Infringement by Third Parties. Licensee shall promptly notify
Licensor of any infringement of Intellectual Property in the
Licensed Products or Documentation that come to Licensee's
attention. In addition, Licensee undertakes to use its
reasonable best efforts to assist and cooperate with Licensor
in the prosecution of any lawsuits, legal actions or other
proceedings which, in the opinion of Licensor, are necessary
or advisable to protect the Licensed Products or the
Documentation, including, at Licensor's request and expense,
participating in such proceedings as a party; provided,
however, that Licensee shall not be required to incur or pay
any costs or expenses (other than de minimis amounts)
occasioned by such assistance or cooperation, and shall be
reimbursed by Licensee for any such expenditures Licensee does
make. The right to protect the Licensed Products and the
Documentation, as well as the right to determine in all
respects the manner of protection, shall at all times rest
exclusively with Licensor.
10
10
SECTION 9. INDEMNIFICATION
A. Indemnity by Licensee. Licensee hereby indemnifies Licensor
and its officers, directors, shareholders, employees and
agents of any of the foregoing against all liability, loss,
damage, cost, claim or expense, including reasonable
attorney's fees, incurred by any such Person by reason of
Licensee's use of the Licensed Products, the Documentation or
the Third Party Products (to the extent that such liability
proximately results from the wrongful conduct of Licensee), or
otherwise incurred in the operation of the Business, or by
reason of any breach or untruth of Licensee's representations
and warranties contained herein or any failure by Licensee to
perform any agreement or covenant on its part contained in
this Agreement.
B. Indemnity by Licensor. Licensor hereby indemnifies Licensee
and its officers, directors, shareholders, employees and
agents of any of the foregoing against all liability, loss,
damage, cost, claim or expense, including reasonable
attorney's fees, incurred by any such Person by reason of any
breach or untruth of Licensor's representations and warranties
contained herein or any failure by Licensor to perform any
agreement or covenant on its part contained in this Agreement.
C. Notice of Claim. Whenever any claim shall arise for
indemnification under this Section 9, the party seeking
indemnification hereunder for a claim (the "Indemnitee") shall
notify the party to provide such indemnification (the
"Indemnitor") of the claim and, when known, the facts
constituting the basis for such claim, and shall cooperate
fully in the defense, settlement or compromise of such claim.
The Indemnitee shall have the sole right to select counsel for
the defense of such claim and to control the defense,
settlement or compromise of such claim, as long as, with
respect to a settlement or compromise, such settlement or
compromise involves only the payment of money for which the
Indemnitee is fully indemnified and includes a full
unconditional release of the Indemnitee from all related
liability; provided that if, in the reasonable opinion of
counsel to Indemnitee, there is a conflict or potential
conflict of interest between the Indemnitor, on the one hand,
and the Indemnitee, on the other hand, the Indemnitee shall be
entitled to direct the defense thereof, but only with respect
to such matters so in conflict, and any settlement or
compromise of such matters shall be subject to the prior
written consent of the Indemnitor (which shall not be
unreasonably withheld). The Indemnitor shall have the right to
participate in (but not control) the defense of any such
claim, with its counsel and at its own expense.
Notwithstanding any and all of the foregoing, to the extent
that any claim arises out of or is related to the Licensed
Products or Documentation or any use of thereof, Licensor
shall have the sole right to select counsel for the defense of
such claim and to control the defense, settlement or
compromise of such claim.
11
11
SECTION 10. GENERAL PROVISIONS
A. Headings. The headings of the Sections and other subdivisions
of this Agreement are for convenience of reference only and
shall not modify, define or limit any of the terms or
provisions of this Agreement.
B. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the
State of New York, without giving effect to any of its
conflicts of law provisions.
C. Severability. If any provision of this Agreement shall be held
to be illegal, invalid or unenforceable, that provision will
be enforced to the maximum extent permissible so as to effect
the intent of the parties and the validity, legality and
enforceability of the remaining provisions shall not in any
way be affected or impaired thereby. If necessary to effect
the intent of the parties, the parties will negotiate in good
faith to amend this Agreement to replace the unenforceable
language with enforceable language which as closely as
possible reflects such intent.
D. Amendments. This Agreement may be modified or amended only by
a written amendment signed by each party hereto.
E. Counterparts. This Agreement may be executed in one or more
counterparts (and all signatures need not be on any one such
counterpart), with all such counterparts together constituting
one and the same instrument.
F. Entire Agreement. This Agreement contains the entire agreement
of the parties with respect to the subject matter hereof and
supersedes any and all prior agreement and understandings,
whether written or oral, with respect to the subject matter
hereof, including the letter agreement dated May 19, 1999
among Viacom, Liberty, and TCI Music.
G. No Presumption. This Agreement shall be construed without
regard to any presumption or rule requiring construction or
interpretation against the party drafting or causing any
instrument to be drafted.
H. Consents and Approvals; Waivers; Remedies. All consents and
approvals which may be given under this Agreement shall, as a
condition of their effectiveness, be in writing. The granting
by a party hereto of any consent to or approval of any act
requiring consent or approval under the terms of this
Agreement, or the failure on the part of a party to object to
any such action taken without the required consent or
approval, shall not be deemed a waiver by the party whose
consent was required of its right to require such consent or
approval for any other act. The observance of any provision of
this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively)
by the party or parties entitled to enforce such term, but any
such waiver shall be effective only if
12
12
in a writing signed by the party or parties against which such
waiver is to be asserted and only in the specific instance and
for the specific purpose for which given. Except as otherwise
provided herein, no failure or delay of any party in
exercising any power or right under this Agreement shall
operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such right or power,
preclude any other or further exercise thereof or the exercise
of any other right or power.
I. Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns,
but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any party hereto
(whether by operation of law or otherwise) without the prior
written consent of the other party hereto except that
immediately after the execution of this Agreement as part of
Licensee's initial contribution to the Partnership, Licensee
shall assign all of its rights and obligations hereunder
(other than its obligation under Section 2 (C)) to the
Partnership and the Partnership shall accept and assume the
same in accordance with the terms of the VLLC Contribution,
Assignment and Assumption Agreement dated as of the date
hereof between Licensee and the Partnership, whereupon the
Partnership shall be substituted for Licensee in all respects
(other than Section 2 (C)) as fully as if it had been an
original party hereto. Upon such assignment and assumption,
Licensee shall be released from all of its obligations
hereunder other than under Section 2 (C). In connection with
the Reorganization, the Partnership shall assign all of its
rights and obligations hereunder to the corporate successor to
all or substantially all of the Partnership's assets pursuant
to an assignment and assumption agreement in form and
substance reasonably satisfactory to Licensor and such
corporate successor shall accept and assume the same. Upon
such assignment and assumption, the Partnership shall be
released from all of its obligations hereunder.
J. Confidentiality. Licensee and its wholly-owned Subsidiaries
shall, and shall use their reasonable best efforts to cause
their respective officers, directors, employees, attorneys,
accountants, contractors and agents (collectively, "AGENTS")
to, keep secret and retain in strictest confidence any and all
Confidential Information; shall not disclose such Confidential
Information, and shall use their reasonable best efforts to
cause their respective Agents not to disclose such
Confidential Information, to any Person other than employees
and Agents of Licensee and said wholly-owned Subsidiaries who
need to know such information in connection with activities
licensed under this Agreement, except (i) for such disclosures
as may be required by law or legal process, disclosures to
Licensee's counsel, or disclosures pursuant to any listing
agreement with, or the rules or regulations of, any securities
exchange on which securities of Licensee or such wholly-owned
Subsidiaries are listed or traded (in which event Licensee
shall so notify Licensor as promptly as practicable (and, if
possible, prior to making such disclosure) and shall seek
confidential treatment of such information); (ii) as may be
necessary to establish or enforce its rights hereunder; or
(iii) with the prior
13
13
written consent of Licensor; and shall not use such
Confidential Information, and shall use its reasonable best
efforts to cause their respective Agents not to use such
Confidential Information, other than in connection with
activities licensed hereunder. Licensee and such wholly-owned
Subsidiaries further agree to take reasonable steps using at
least the same degree of care that they use to protect their
own software, technology and information of like sensitivity
and importance to the Confidential Information, but no less
than reasonable care, to ensure that such Confidential
Information is not disclosed, distributed or used in violation
of the provisions of this Agreement. For purposes of this
Section 10 (J), "CONFIDENTIAL INFORMATION" shall mean (1) the
terms of this Agreement and (2) all business and technical
information relating to Licensor's businesses, including
without limitation all Object Code, Source Code and
Documentation for the Subject Products and the Licensed
Products, that is proprietary to Licensor or otherwise not
available to the general public; provided, however, that such
Confidential Information shall not include any information
that (a) is or has become generally available to the public
other than as a result of a disclosure by Licensee, said
wholly-owned Subsidiaries or their respective Agents, (b) has
been independently developed by Licensee or said wholly-owned
Subsidiaries, or (c) is, or becomes available to Licensee or
said wholly-owned Subsidiaries on a non-confidential basis
from a third party having no obligation of confidentiality to
a party hereto and which has not itself received such
information directly or indirectly in breach of any such
obligation of confidentiality.
K. Equitable Relief. Licensee acknowledges that the Licensed
Products and Documentation are of a unique and original
character giving them peculiar value, the loss of which cannot
be compensated in damages in an action at law. Licensee
further agrees and acknowledges that, in addition to all other
rights that Licensor may have, Licensor shall be entitled as a
matter of right without further notice to Licensee, to obtain
injunctive and/or other equitable relief as may be provided by
law against any threatened, potential or actual breach by
Licensee of any of the provisions hereof.
L. Third Party Beneficiary. For so long as the Tune Stockholder
Group meets the Tune Minimum Condition, TCI Music shall be a
third party beneficiary of Licensor's obligations to the
Partnership hereunder insofar as and only to the extent that
it shall be entitled to enforce the Partnership's rights
hereunder in a separate cause of action for the benefit of the
Partnership. The Partnership shall indemnify and hold harmless
TCI Music from and against any costs and expenses (including
reasonable attorneys' fees) incurred by it in pursuing such a
cause of action if such cause of action is resolved in favor
of the Partnership and/or TCI Music. Except as set forth in
the first sentence of this Section 10 (L), this Agreement is
for the sole benefit of the parties hereto and their
respective successors and permitted assigns and nothing
herein, express or implied, is intended to or shall confer
upon any Person other than such parties any legal or equitable
right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
14
14
M. Notices. Except as expressly provided herein, notices and
other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service,
mailed (certified or registered mail, postage prepaid, return
receipt requested) or sent by facsimile copier of the sending
party, as follows:
If to Licensor:
MTV Networks
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: 000-000-0000
Attention: General Counsel
If to the Licensee:
MTVN Online Partner I LLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: 000-000-0000
Attention: Chief Executive Officer
or to such other address or attention of such other Person as
any party shall advise the other parties in writing. All
notices and other communications given to a party in
accordance with the provisions of this Agreement shall be
deemed to have been given (i) three Business Days after the
same are sent by certified or registered mail, postage
prepaid, return receipt requested, (ii) when delivered by hand
or transmitted by fax (confirmation received) unless delivered
on a day which is not a Business Day or after 5:00 p.m., local
time, at the place of receipt, in which case such notice shall
be deemed to have been given on the next succeeding Business
Day or (iii) one Business Day after the same are sent by a
reliable overnight courier service, with acknowledgment of
receipt.
N. Jurisdiction; Venue.
(i) Each party hereby irrevocably and unconditionally submits,
for itself and its property, to the jurisdiction of any New
York State court sitting in the County of New York or any
federal court of the United States of America sitting in the
Southern District of New York, and any appellate court from
any such court, in any suit, action or proceeding arising out
of or relating to this Agreement, or for recognition or
enforcement of any judgment relating hereto.
(ii) Each party hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so,
any objection which it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or
relating to this Agreement in any New York State court sitting
in the County of New York or any federal court sitting in the
Xxxxxxxx Xxxxxxxx xx Xxx Xxxx,
00
00
and any appellate court from any such court. Each party hereby
irrevocably waives, to the fullest extent permitted by law,
the defense of an inconvenient forum to the maintenance of
such suit, action or proceeding in any such court and further
waives the right to object, with respect to such suit, action
or proceeding, that such court does not have jurisdiction over
such party. Each party hereby irrevocably waives the right to
a jury trial in any suit, action or proceeding arising out of
or related to this Agreement.
O. Force Majeure. No failure or omission by a party hereto in the
performance of any of its obligations under this Agreement
shall be deemed a breach of this Agreement nor shall it create
any liability, if the same shall arise from any cause or
causes beyond the control of the party, including, but not
limited to, the following, which, for the purpose of this
Agreement, shall be regarded as beyond the control of the
party in question: acts of God, acts or omissions of any
government, any rules, regulations, or orders issued by any
Governmental Entity, fire, storm, flood, earthquake, accident,
war, rebellion, insurrection, riot, invasion, strikes and
lockouts; provided, however, that the party so affected shall
use its reasonable best efforts to avoid or remove such causes
of nonperformance and shall continue performance hereunder
with the utmost dispatch whenever such causes are removed.
(P) Binding on Viacom. The parties acknowledge that MTVN and
Infoworks are divisions of Viacom and that, consequently,
Viacom is obligated to perform the obligations to be performed
by MTVN and Infoworks hereunder. Insofar as this Agreement
refers to MTVN or Infoworks in the context of an operating
business, it shall refer only to the operating unit or units
of Viacom that on a day-to-day basis operate the business of
MTV: Music Television or VH1 Music First in the case of MTVN,
and technology services related to music-themed internet sites
in the case of Infoworks.
16
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed in duplicate counterparts, each of which shall be deemed to
constitute an original, effective as of the date first above written.
INFOWORKS, a division of Viacom International Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Sr. Vice President and General Counsel
MTV NETWORKS, a division of Viacom International Inc.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Sr. Vice President, General Counsel and
Assistant Secretary
MTVN ONLINE INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxx X.Xxxxxxx
Title: Sr. Vice President, General Counsel and
Assistant Secretary
MTVN ONLINE PARTNER I LLC
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Manager: Sr. Vice President, General Counsel
and Assistant Secretary
