EXHIBIT 10.29
License and Services Agreement ("Agreement") is made and
entered into as of August 12, 1998, by and between
Ticketmaster Corporation, an Illinois corporation ("TM
Corp"); Ticketmaster Multimedia Holdings, Inc., a Delaware
corporation ("TMOL") and USA Networks, Inc. ("USAi").
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Introduction
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The parties have entered into an Agreement and Plan of Reorganization
("Reorganization Agreement") of even date herewith under which TMOL became a
wholly-owned subsidiary of CitySearch, Inc. ("CitySearch"). TMOL was,
immediately prior to the effective date of the merger consummated pursuant to
the Reorganization Agreement, a wholly-owned subsidiary of TM Corp, serving as
Online (as defined below) distribution agent for TM Corp and, upon effectiveness
of the merger, remains an indirect subsidiary of TM Corp.
As part of the transaction described in the Reorganization Agreement
and pursuant to this Agreement, Ticketmaster Companies are formally designating
TMOL as their exclusive agent for Online distribution of TM Tickets serving TM
Corp's Client Venues and are granting to TMOL the right to use the
"Ticketmaster" logos and related trademark and service xxxx rights in connection
with the online sales of tickets and merchandise.
In consideration of the foregoing premises and the respective
representations, warranties, covenants and agreements set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. The following terms shall have the meanings set
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forth below for all purposes under this Agreement.
"Affiliate" of an entity means (i) any entity controlled by,
controlling, or under common control with such first entity, where "control"
means ownership, either direct or indirect, of more than 50% of the equity
interest entitled to vote for the election of directors or equivalent governing
body and/or (ii) any entity of which such first entity has possession, either
direct or indirect, of the power to direct or cause the direction of management
and policies of the second entity through ownership of voting securities, by
contract or otherwise. Notwithstanding the foregoing, neither TMOL, CitySearch
nor either of their majority-owned subsidiaries will be considered to be an
Affiliate of TM Corp or any of the Ticketmaster Companies for the purposes of
this Agreement.
"Client Venue Agreement" means a contract, agreement or arrangement
for the distribution of tickets on behalf of a Venue to which any Ticketmaster
Company is a party.
"Client Venues" means Venues which are parties to Client Venue
Agreements.
"Confidential Information" means any information disclosed by one
party to the other pursuant to this Agreement, either orally or in writing,
which is designated "Confidential," "Proprietary" or in some similar manner.
"Consumers" means parties buying Tickets or Merchandise.
"Fees" means any fees or charges (including without limitation
convenience charges, shipping and handling charges, TMOL Inside Charges, license
fees and sales and use taxes) payable to a Ticketmaster Company in respect of
Online Ticket sales.
"Merchandise" means goods or services other than tickets.
"Online" means electronic interactive services that are available via
public or private computer networks such as the Internet (e.g. the World Wide
Web), proprietary online services such as America Online and hybrid Internet
services such as WebTV and @Home. In the event that other electronic
interactive services emerge that would facilitate the sale of Tickets, the
parties pledge to make a good faith effort to integrate those services into this
Agreement, where appropriate. "Online" does not mean media such as non-
interactive cable television, satellite television, broadcast television, or the
like. The parties acknowledge that this definition also does not include voice-
to-voice or VRU based telephone services, kiosks dedicated exclusively to ticket
sales or retail ticket outlets.
"Online Ticketing and Sales" means the portion of any sale or
attempted sale of Tickets or Merchandise by Online means during which (a) the
Consumer provides specific transaction information such as quantity and type of
Tickets or Merchandise requested for purchase; (b) Inventory Data is accessed,
utilized, manipulated or displayed; (c) the Consumer provides personal data such
as name, billing and shipping address, and credit card or other payment
information; (d) the Consumer becomes bound to the purchase of the Tickets or
Merchandise; or (e) steps in an attempted or completed purchase and sale
transaction occur that are substantially equivalent to any of (a) through (d).
"Online Promotion" means the portion of any sale, attempted sale or
promotion of Tickets or Merchandise by Online means which does not constitute
Online Ticketing and Sales.
"Territory" means the United States, Canada and the United Kingdom,
their territories and possessions.
"Ticket" means tickets or reservations for individual (not group or
season) sale to the general public for any event or attraction, that may be
sold, distributed or promoted under a Trademark, excluding only travel and
lodging, for which a convenience charge has been received and retained, not sold
at a box office for the Client Venue.
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"xxxxxxxxxxxx.xxx" means all Web sites and pages located at the domain
name xxxxxxxxxxxx.xxx or any subdomains thereof and successors consistent with
the definition of Online.
"Ticketmaster Companies" means USAi, Ticketmaster Group, Inc., TM
Corp, and all their respective Affiliates, whether existing now or in the
future, other than CitySearch or TMOL or any of the majority-owned subsidiaries
of CitySearch or TMOL.
"TM Data" means the database maintained by TM Corp or its subsidiaries
containing, among other things, publicly available data regarding Client Venues
("Venue Data"); confidential data regarding Consumer Online sales, demographic
and other data relating to Online sales ("Consumer Data"); publicly available
data regarding performances, events and attractions ("Event Data"); publicly
available data regarding TM Merchandise ("Merchandise Data"); and confidential
data regarding inventories of Tickets for Client Venues or TM Merchandise
("Inventory Data").
"TM Domain Names" means the domain names listed on Exhibit F.
"TM Merchandise" means any goods or services that TM Corp or its
subsidiaries may sell or have the right to sell to Consumers in any manner,
including without limitation through Online distribution.
"TM Ticket" means any Ticket that any Ticketmaster Company may sell or
provide to Consumers pursuant to a Client Venue Agreement.
"TMOL Inside Charges" means per Ticket during any year the "Online
Percentage" of the excess of inside charge per Ticket in such year over the
inside charge per Ticket in 1998 escalating at 5% per year thereafter where (i)
the inside charge per Ticket is determined for this clause only based on
telephone, box office, Online and outlet Ticket sales and (ii) "Online
Percentage" is the number of TM Tickets sold Online as a percentage of total TM
Tickets sold for such year.
"Trademarks" means the marks identified in Exhibit D incorporating the
word "Ticketmaster," and any other logos, trademarks, service marks, and the
like incorporating the word "Ticketmaster" that the Ticketmaster Companies may
adopt from time to time using the Ticketmaster name in connection with the
distribution of Tickets.
"Venues" means entities that own or control the sale of Tickets.
1.2 Interpretations. Except as otherwise expressly provided in this
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Agreement, the following rules of interpretation apply to this Agreement: (i)
the singular includes the plural and the plural includes the singular; (ii) "or"
and "any" are not exclusive and "include" and "including" are not limiting;
(iii) a reference to any agreement or other contract includes permitted
supplements and amendments; (iv) a reference to a law includes any amendment or
modification to such law and any rules or regulations issued thereunder; (v) a
reference to a person includes its permitted successors and assigns; (vi) a
reference to generally accepted accounting principles refers to United States
generally accepted accounting
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principles; and (vii) a reference in this Agreement to an Article, Section,
Annex, Exhibit or Schedule is to the Article, Section, Annex, Exhibit or
Schedule of this Agreement.
ARTICLE II
LICENSE, AGENCY
2.1 Licenses; Agencies. Subject to the continued compliance by TMOL
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with all of the material terms and conditions of this Agreement:
(a) Trademark License. TM Corp, on behalf of Ticketmaster Companies,
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hereby grants to TMOL as follows:
(i) the exclusive, perpetual, irrevocable, worldwide right to
use the Trademarks to designate the source or origin of TM Tickets in connection
with Online Ticketing and Sale of TM Tickets;
(ii) the exclusive, perpetual, irrevocable right to use the
Trademarks to designate the source or origin of TM Merchandise in connection
with the Online Ticketing and Sale of TM Merchandise to shipping addresses
within the Territory;
(iii) the non-exclusive, perpetual, irrevocable right to use the
Trademarks to designate the source or origin of TM Merchandise in connection
with the Online Ticketing and Sale of TM Merchandise to shipping addresses
outside the Territory;
(iv) the non-exclusive, perpetual, irrevocable, worldwide right
to use the Trademarks in connection with Online Promotion of TM Tickets and TM
Merchandise, including without limitation the right to display the Trademarks on
Web sites of TMOL and the right to use the Trademarks on promotional and
advertising materials in connection with Online Ticketing and Sale and Online
Promotion of TM Tickets and TM Merchandise; and
(v) the exclusive, perpetual, irrevocable right to use the TM
Domain Names.
(b) Use of TM Data. TM Corp, on behalf of Ticketmaster Companies,
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hereby grants to TMOL the exclusive (to the extent set forth below in
subparagraph (v)), worldwide, perpetual, irrevocable license to use the TM Data
in connection with the operation of the TMOL business as follows:
(i) Inventory Data is confidential and may be used by TMOL
solely in connection with Online Ticketing and Sales to individual
Consumers, and may not otherwise be used by TMOL. In particular, TMOL may
not on its own behalf systematically access, or permit any third party
systematically to access, the Inventory Data in order to view or duplicate
any portion of the Inventory Data database other than as necessary in
connection with individual bona fide Online Ticketing and Sales.
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(ii) Consumer Data is confidential and may be used by TMOL solely
in connection with bona fide Online Ticketing and Sales, advertising,
direct mail and Online Promotion conducted by TMOL on its own behalf.
(iii) Except as required pursuant to Client Venue Agreements
and the Agreements listed on Exhibit G, Venue, Event and Merchandise Data
may be used by TMOL on its own behalf but not licensed, sold or leased to
third parties. TMOL may use such Venue, Event and Merchandise Data solely
in connection with use of one or more appropriate Trademarks branding the
web page, display or advertisement in which such Venue, Event and
Merchandise Data is used or otherwise in connection with the proximate use
of one or more appropriate Trademarks.
(iv) The restrictions contained in subparagraphs (i) through
(iii) above shall not apply to the extent that any TM Data that becomes
known to TMOL from a source other than TM Corp or its Affiliate and is
subject to less restrictive usage requirements.
(v) Except as may be provided for in any Client Venue Agreements
or any agreements to which the Ticketmaster Companies are party as of the
date hereof that are listed in Exhibit G, the Ticketmaster Companies shall
not authorize any third party to use TM Data Online.
(c) TM Tickets. TM Corp, on behalf of Ticketmaster Companies, hereby
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appoints TMOL as worldwide, exclusive, perpetual agent for the Online Ticketing
and Sale and Online Promotion of TM Tickets in accordance with the terms of the
Client Venue Agreements. Except as required under this Agreement, TM Corp
agrees on behalf of Ticketmaster Companies that Ticketmaster Companies shall not
engage in Online Ticketing and Sale and Online Promotion of TM Tickets, or grant
to any other party the right to engage in such actions, or use the Trademarks in
connection with such actions or cooperate with in any way or grant to any other
party the right to use the Trademarks in connection with Online Ticketing and
Sale and Online Promotion of TM Tickets. In the case of any country in which
there is a Client Venue for which TM Corp or an Affiliate has acquired rights to
conduct Online Ticketing and Sales and Online Promotion of TM Tickets for such
Client Venue, upon the request of TM Corp, TMOL shall use commercially
reasonable efforts to develop a Web site or similar Online content, as TM Corp
may request, enabling the Online Ticketing and Sale of TM Tickets in a form and
language appropriate to such country.
(d) Merchandise. TM Corp, on behalf of Ticketmaster Companies, hereby
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appoints TMOL as non-exclusive, worldwide agent for the Online Ticketing and
Sale and Online Promotion of TM Merchandise. TMOL may sell Other Merchandise,
subject to Sections 2.2. TM Corp agrees on behalf of Ticketmaster Companies
that Ticketmaster Companies shall not grant to any other party the right to
serve as agent for, or cooperate with in any way or grant to any other party the
right to use the Trademarks in connection with, the Online Ticketing and Sale of
TM Merchandise for shipping addresses in the Territory.
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2.2 Other Agreements. TMOL's rights under Section 2.1 and this
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Agreement are subordinated and subject to any rights retained by such Client
Venues under any Client Venue Agreement, and subordinated and subject to all
other agreements to which the Ticketmaster Companies are subject as of the date
hereof that are listed in Exhibit G. TMOL shall not breach the terms and
provisions of any Client Venue Agreements or other agreements to which the
Ticketmaster Companies are party provided or made available to TMOL by the
Ticketmaster Companies that are applicable to TMOL's activities under this
Agreement, nor breach the terms or provisions of such agreements about which TM
Corp has given TMOL notice; provided, however, that TMOL will not be deemed in
breach of this provision unless such breach remains uncured for the cure period
in the underlying contract provided that TM Corp gives notice to TMOL (including
notice of the relevant cure period) thereof describing such breach and the
relevant contract terms.
2.3 TMOL Marketing Partners and Affiliates. Subject to the consent
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of TM Corp, which consent shall not be unreasonably withheld, TMOL may
sublicense the rights granted above and appoint distribution agents to perform
Online Ticketing and Sale and Online Promotion of TM Tickets and TM Merchandise
to any TMOL business associates operating city guide Web sites and approved by
TM Corp, in connection with the operation of such sites. Any such sublicense or
distribution arrangement shall be on terms approved by TM Corp, whose approval
shall not be unreasonably withheld. TMOL may also allow any TMOL Affiliate
agreeing to comply with the terms of this Agreement to exercise any right
hereunder.
ARTICLE III
MARKETING AND USE OF TRADEMARKS
3.1 xxxxxxxxxxxx.xxx. At all times during the term of this
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Agreement, TMOL shall conduct Online Ticketing and Sales solely by means of the
xxxxxxxxxxxx.xxx domain or subdomains thereof, including
xxxxxxxxx.xxxxxxxxxxxx.xxx, or in the case of Consumers making use of Online
communications not part of the World Wide Web, such as America Online and other
proprietary Online services, solely by means of technology authorized by TM
Corp, which authorization shall not be unreasonably withheld. Without limiting
Article II, TMOL may conduct Online Promotion by means of xxxxxxxxxxxx.xxx and
subdomains thereof. TMOL shall consult with TM Corp regarding Online Promotion
by other Online means. TMOL shall perform any Online Promotion by other Online
means in good faith, and subject to Section 2.2.
3.2 TMOL Sponsorships. TMOL shall comply with the trademark use
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guidelines in Exhibit C regarding sponsorships, advertising or promotions
arranged and sold by TMOL to third parties involving xxxxxxxxxxxx.xxx. Any use
not allowed by such guidelines will be subject to the prior approval of TM Corp,
which will not be unreasonably delayed or withheld. TM Corp and TMOL will
develop a working relationship for daily review of the content of
xxxxxxxxxxxx.xxx for uses requiring prior approval.
3.3 Compliance with Laws. Each party shall comply with all
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applicable laws, statutes and regulations with respect to such parties'
obligations under this Agreement.
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3.4 Ownership. TMOL acknowledges and admits the validity of the
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Trademarks and covenants that it will not directly or indirectly contest the
validity of the Trademarks or the right and title of TM Corp therein and
thereto. All uses to be made by TMOL or its permitted sublicensees, if any, of
the Trademarks shall inure to the benefit of TM Corp. TMOL and its permitted
sublicensees, if any, shall acquire no right, title or interest in the
Trademarks or any goodwill associated therewith apart from the rights granted to
TMOL herein. This Agreement shall not affect TM Corp's right to enjoin or
obtain relief against any acts by third parties of trademark infringement or
unfair competition. At the request of TM Corp, TMOL shall, and shall cause any
of its permitted sublicensees to, execute and deliver any and all documents
necessary to enter TMOL or its permitted sublicensees thereof as registered
users of the Trademarks in each country of use to the extent required by
applicable law.
3.5 Quality Control. All uses by TMOL of the Trademarks shall meet
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commercially reasonable standards of quality, which includes but is not limited
to the quality of the services and products heretofore distributed or provided
by TM Corp, or shall meet such other reasonable standards and specifications as
may be set by TM Corp and communicated to TMOL from time to time, including but
not limited to any fair practices requirements that TM Corp may reasonably
promulgate, such as prohibitions on brokering, scalping and unauthorized release
of Tickets, and similar requirements appropriate to the Online environment.
Upon TM Corp's request from time to time, TMOL shall provide to TM Corp
representative samples of its uses of the Trademarks or permit TM Corp to
inspect TMOL's places of business where the Trademarks are used.
3.6 Maintenance and Protection of Trademarks.
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(a) Maintenance of Trademarks. TM Corp shall use commercially
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reasonable efforts to maintain all registrations and prosecute all applications
for registration in the Trademarks. TM Corp shall include, to the extent
legally permissible and commercially reasonable, Online Ticketing and Sale of
TM Tickets and TM Merchandise in connection with any descriptions of use in any
applications to be filed for trademark registrations. At TM Corp's reasonable
request, TMOL, at TMOL's expense, shall furnish evidence of use as may be
reasonably required for such maintenance, and shall execute all documents as TM
Corp reasonably requests in order to maintain a registration or establish or
maintain TM Corp's ownership of the Trademarks.
(b) Trademark Legends. TMOL shall use any trademark notice that TM
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Corp deems advisable. In connection herewith, TMOL may use the encircled R
("(R)"), service xxxx ("?") or trademark ("") designations, as appropriate, the
first and most prominent time each Trademark is used, and may use the following
legend:
"[Trademark(s)] [is a/are] [federally-] [registered trademark(s)]
owned by Ticketmaster Corporation and [is/are] used under license."
(c) Infringement. Each party will notify the other party of any and
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all infringements, imitations or illegal uses of the Trademarks that come to
such party's attention. TM Corp shall have the right, and to the extent
commercially reasonable, the obligation, to
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prosecute, defend and conduct, at the expense of the party on whose behalf such
actions are being taken, all proceedings or actions involving the Trademarks and
to take any actions that it may deem proper or necessary for the protection of
the Trademarks. Upon TM Corp's request, TMOL and its permitted sublicensees, if
any, shall cooperate fully with TM Corp in connection with any such actions. The
proceeds, if any, of any such actions shall be paid to the party at whose
expense such actions were taken. TMOL shall have no right to prosecute, defend
or conduct any such proceedings or actions.
3.7 Reservation of Rights. TM Corp hereby reserves all rights,
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including title, to trademarks, domain names, URLs and data not expressly
granted in this Agreement and the right to continue to use as E-mail addresses
@xxxxxxxxxxxx.xxx.
ARTICLE IV
SERVICES
4.1 TM Corp Services. TM Corp shall provide the following services:
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(a) Ticket and Merchandise Fulfillment Services. TM Corp, directly or
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through any Ticketmaster Company, shall provide the services described in
Exhibit A to TMOL, with no less than the same level of service generally as
currently provided by TM Corp to TMOL for Online Ticketing and Sales and Online
Promotion (subject to appropriate adjustments for changes in market conditions).
(b) Other Merchandise Fulfillment. One or more of the Affiliates of
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TM Corp, to be designated by TM Corp (the "TM Fulfillment Entity"), shall
provide to TMOL services for the fulfillment of orders for Merchandise other
than TM Merchandise sold through the TMOL City Guide Web sites or other Web
sites to be operated or owned by TMOL ("Other Merchandise"). TMOL will
reimburse TM Corp for the direct cost of the Other Merchandise and pay to TM
Corp a fee at competitive prices. TMOL shall reimburse TM Corp or the TM
Fulfillment Entity for actual direct expenses relating to these services.
4.2 TMOL Services. TMOL agrees to act as the Ticketmaster Companies'
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agent for Online distribution of Tickets, and in connection with such agreement
to promote the Online sale of Tickets.
4.3 Exclusivity. Subject to TM Corp's performance of its obligations
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under Sections 4.1.(a) and 4.1(b), TMOL shall not use any party other than the
TM Fulfillment Entity to provide services to TMOL for the fulfillment of orders
for TM Merchandise and Tickets. Provided that the TM Fulfillment Entity's fees,
aggregate terms, and quality of service for fulfillment of orders for Other
Merchandise are no worse than those available from third parties, TMOL shall not
use any party other than the TM Fulfillment Entity to provide services to TMOL
for the fulfillment of orders for Other Merchandise.
4.4 TM Database Services. TM Corp shall make the TM Data available
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for TMOL in the same manner TM Corp currently provides such TM Data to TMOL. TM
Corp
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will use commercially reasonable efforts to provide other data base services
requested by TMOL, such as data mining of the TM Data and data warehousing, on
mutually acceptable terms and conditions, at TMOL's expense at reasonable rates.
ARTICLE V
REVENUES AND PAYMENTS
5.1 Revenue Recognition. The parties agree that Fees are intended to
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be recognizable revenue of TMOL. If this Article does not accomplish the
intended purposes, the parties will negotiate in good faith to make appropriate
revisions to achieve the intended purpose.
5.2 Payment of Fees. TM Corp shall pay to TMOL all Fees collected by
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TM Corp or any Ticketmaster Company during such week for all sales from Monday
through Sunday for a given week, on the subsequent Friday, in respect of Online
Ticket sales less (i) all Client Venues' share of such Fees, (ii) royalties to
TM Corp in respect of such Fees on an average basis, and (iii) reimbursement for
direct expenses in respect of Online Ticket sales for the services as provided
in Section 5.3.
5.3 Expenses. TM Corp shall provide TMOL monthly invoices showing
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direct expenses according to the Expense Guidelines set forth in Exhibit B. TMOL
shall reimburse TM Corp (or the appropriate Ticketmaster Company described in
Section 4.1(a) or the TM Fulfillment Entity described in Section 4.1(b)) for
such expenses not previously reimbursed, no later than 15 days after receipt of
such invoice; provided, however, that in no event shall TMOL be obligated to pay
expenses under this Section 5.3 in excess of Fees received under Section 5.2.
5.4 Royalties. Royalties for the purposes of Section 5.2 shall equal
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[*]% of "Profit," where Profit for any period means Fees payable to TMOL under
Section 5.2 (including without limitation convenience charges with respect to
Ticket sales and shipping and handling revenue related to Tickets) minus all
direct expenses related to Ticket sales (including without limitation all direct
expenses such as third party royalties, direct operations costs for operation
and maintenance of TM Corp's gateway servers and communications links from TM
Corp's database to TMOL's Web servers, data line costs, the reasonable costs of
creating, maintaining, operating and upgrading (other than costs that are
capitalized in accordance with generally accepted accounting procedures) the
xxxxxxxxxxxx.xxx Web site, costs associated with lost Tickets, secondary
commissions, credit card and other payment
processing expense, credit card charge-backs, shipping and handling costs for TM
Ticket sales, sales and use taxes, and refunds payable under Section 5.5)
incurred by TMOL, including
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[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
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without limitation those expenses reimbursed to TM Corp under Section 5.3. The
parties acknowledge that such royalties will be deductible expenses of TMOL.
5.5 Returns and Refunds. TMOL shall return to TM Corp any amount
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received in respect of tickets that subsequently are refunded or for which TM
Corp does not receive a convenience charge. TM Corp will have the right to
offset from its remittances of Fees any amounts due Consumers for return of
tickets and any amounts due TM Corp or its Client Venues, including charge-
backs.
5.6 Quarterly True-Up. At the end of each calendar quarter, TM Corp
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will calculate all amounts estimated for the purposes of Sections 5.2, 5.3 and
5.4 including the actual cost incurred of providing to TMOL the services
eligible for reimbursement and royalties due TM Corp, and the parties shall,
within 30 days, true-up any differences between actual costs and allocations.
Royalties and expenses estimated for the purposes of Sections 5.2, 5.3 and 5.4
shall be estimated at no more than the actual amounts on a per ticket basis for
the prior quarter.
5.7 Audits. Each party shall deliver, along with its payments due
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under this Article V, a report showing in reasonable detail the basis for such
payment. Each party shall keep and maintain complete and accurate records of
the transactions underlying the reports to be furnished hereunder, and shall
allow the other party's representative (a third party certified public
accountant), during office hours and at reasonable intervals, to inspect and
make extracts or copies of such records solely for the purpose of ascertaining
the correctness of such statements, at the expense of the party conducting such
inspection.
ARTICLE VI
SPONSORSHIPS AND ADVERTISING
6.1 Advertising. Subject to the terms of this Article VI, TM Corp
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may arrange advertising for TMOL Web sites, to be sold in a bundle with other
advertising sold by TM Corp. TMOL shall provide TM Corp the opportunity to
solicit sales of advertising on terms no less favorable than those it provides
to other agencies soliciting advertising in similar quantity and quality. TMOL
shall accommodate any advertising agreements of TM Corp existing as of the
effective date of this Agreement that are listed on Exhibit E.
6.2 TM Corp Sponsors. As to credit card, shipping and handling,
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technology and telephone sponsors at TM Corp, TM Corp shall use commercially
reasonable efforts to cause such sponsorship arrangements to include Online
advertising on xxxxxxxxxxxx.xxx. If such sponsorship arrangements include
advertising on xxxxxxxxxxxx.xxx, TM Corp shall pay to TMOL a reasonable
allocation of sponsorship revenue, consistent with previous methods of
allocation in Exhibit E but subject to changes in market conditions, after
deduction of a reasonable allocation of costs and rebates, if any, made to
Client Venues and any direct costs associated with the production of such
revenue. Exhibit E describes such allocation with respect to any sponsorship
agreements of TM Corp existing as of the effective
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date of this Agreement. TM Corp shall keep TMOL apprised of all actual or
anticipated sponsorships arranged or being sought by TM Corp.
ARTICLE VII
ONLINE RIGHTS AND VENUE AGREEMENTS
7.1 Online Distribution Rights. In the event any Ticketmaster
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Company assigns, transfers, or otherwise encumbers any rights of a Ticketmaster
Company to generate Fees or permits the transfer of control of any Ticketmaster
Company (by merger, consolidation, sales of equity interests or assets, or any
other means) (a) the Ticketmaster Companies shall obtain from the assignee or
transferee for the benefit of TMOL terms no less favorable than those granted by
the Ticketmaster Companies to TMOL under this Agreement, or the Ticketmaster
Companies shall otherwise provide TMOL substantially equivalent economic
benefits on an ongoing basis and (b) the parties agree to negotiate in good
faith alternative arrangements to give full effect to TMOL's rights and
obligations hereunder.
7.2 Client Venue Agreements. TM Corp shall use reasonable best
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efforts to ensure that, under each Client Venue Agreement entered into or
renewed after the effective date of the Agreement, TM Corp will maintain the
Online distribution rights in a manner that TMOL can enjoy the benefits of this
Agreement. TM Corp shall use reasonable best efforts to enter into or renew
Client Venue Agreements on or after the effective date of this Agreement on
terms (including with respect to charges constituting Fees) no less favorable to
TMOL than the terms pertaining to Ticket distribution conducted by telephone.
Notwithstanding the foregoing, TM Corp may in lieu of the requirements of this
provision provide TMOL the economic equivalent of the inclusion of such rights.
ARTICLE VIII
NON-COMPETITION
8.1 In consideration for the exclusive arrangements of this
Agreement, (a) TMOL shall not enter into any arrangements with any Venues, and
Ticket sales agents or sellers of Tickets other than Ticketmaster Companies to
provide Online promotion or sales of Tickets during the term of the Agreement;
and (b) USAi, on behalf of Ticketmaster Companies, agrees that, except to
perform their obligations under this Agreement, Ticketmaster Companies shall not
engage in, enter into any arrangements or cooperate with any third party for
Online Ticketing and Sales or Online Promotion of TM Tickets. Nothing in this
Agreement shall be construed to prevent the TMOL CitySearch Web sites from
incorporating links to a Web site owned or operated by a Venue (other than a
Client Venue, a Ticket sales agent or a reseller of Tickets) through which
Online promotion and sales of the Tickets of such Venue occur, provided that TM
Corp reasonably does not deem such Venue to be a material part of the potential
market for TM Corp's ticketing or other services to Venues in the locality of
such Venue.
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ARTICLE IX
REPRESENTATIONS AND WARRANTIES; INDEMNITIES
9.1 TM Corp Representations and Warranties. TM Corp hereby
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represents and warrants that:
(i) TM Corp has the right to enter into this Agreement and to grant
the rights being granted under this Agreement and has granted no rights that
would prohibit or materially interfere with the rights granted or agreements
made under this Agreement; and
(ii) The Ticketmaster Companies hold a valid trademark registration in
the word xxxx "TICKETMASTER" for use in connection with the respective goods and
services in each of the countries listed in Exhibit D with status "Registered"
for such word xxxx; as to all other Trademarks, except to an extent that would
not have a material adverse effect on TMOL's rights under this Agreement, and
except in connection with Trademarks identified in Exhibit D with status other
than "Registered," the Ticketmaster Companies hold a valid trademark
registration in such Trademarks for use in connection with the respective goods
and services, in each case in the country listed in Exhibit D pertaining to such
Trademark.
9.2 Copyright and Trade Secret Indemnities. Each party will be
--------------------------------------
performing its obligations under this Agreement using certain technology in
connection with Online Ticketing and Sales and Online Promotion ("Technology").
Each party shall defend or settle any third party claim, proceeding or suit
("Claim") brought against the other party to the extent such Claim alleges
infringement of any copyright or trade secret in the Territory which
infringement arises from use of the Technology in connection with Online Ticket
distribution.
9.3 Indemnity. Each party shall indemnify and hold harmless the
---------
other party against any and all Claims, losses, liabilities, and expenses
arising out of any breach by such party of Article II or Article III of this
Agreement.
9.4 Limitations. Neither party will have any obligations for Claims
-----------
under this Article IX unless (a) the indemnified party notifies the indemnifying
party promptly in writing of the Claim, (b) the indemnified party gives the
indemnifying party sole control over the defense and settlement of such Claim,
and (c) the indemnified party gives the indemnifying party full information and
assistance to defend or settle such Claim. The foregoing states the entire
liability and obligations of each party, and the sole remedy of each party, with
respect to any alleged infringement of patents, copyrights, or trade secrets
with respect to the Technology.
-12-
ARTICLE X
CONFIDENTIALITY
10.1 Confidentiality. Each party shall treat as confidential all
---------------
Confidential Information of the other party, shall not use such Confidential
Information except in connection with performing its obligations and exercising
its rights under this Agreement and shall not disclose such Confidential
Information to any third party. This Section 10.1 will not apply to any
Confidential Information which is or becomes generally known and available in
the public domain through no fault of the receiver.
ARTICLE XI
TERM AND TERMINATION
11.1 Term. This Agreement will commence on the Effective Time, as
----
such term is defined in the Reorganization Agreement and continue perpetually
unless and until terminated as set forth below.
11.2 No Injunctive Relief. Notwithstanding anything to the contrary
--------------------
herein, no breach of this Agreement will entitle any party to terminate or
rescind this Agreement, or entitle TM Corp or Ticketmaster Companies to
injunctive or other equitable relief to terminate the licenses in this
Agreement. However, TMOL may terminate the provisions of Sections 4.1 and 4.3
regarding fulfillment services in the event of a material breach by TM Corp of
Section 4.1 that is uncured after 60 days written notice thereof to TM Corp.
11.3 Effect of Termination. The rights and obligations of the parties
---------------------
under Article X will survive any termination of this Agreement.
ARTICLE XII
GENERAL PROVISIONS
12.1 Amendment. Subject to applicable law, this Agreement may be
---------
amended by the parties hereto at any time by execution of an instrument in
writing signed on behalf of each of each party; however, prior to an initial
public offering of TMOL, this Agreement may not be modified without the approval
of a majority of the City Directors (as defined in the Reorganization
Agreement).
12.2 Extension; Waiver. Any party hereto may, to the extent legally
-----------------
allowed, (i) extend the time for the performance of any of the obligations or
other acts of the other parties hereto, (ii) waive any inaccuracies in the
representations and warranties made to such party contained herein or in any
document delivered pursuant hereto and (iii) waive compliance with any of the
agreements or conditions for the benefit of such party contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if
-13-
set forth in an instrument in writing signed on behalf of such party. Delay in
exercising any right under this Agreement will not constitute a waiver of such
right.
12.3 Notices. All notices and other communications hereunder must be
-------
in writing and shall be deemed given if delivered personally or by commercial
delivery service, or sent via facsimile (receipt confirmed) to the parties at
the following addresses or facsimile numbers (or at such other address or
facsimile numbers for a party as shall be specified by like notice):
(a) if to TMOL, to:
c/o CitySearch, Inc.
000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxx XxXxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxxxx
Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(b) if to TM Corp, or any Ticketmaster Company, to:
Ticketmaster Group, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxx, XX 00000
Attention: General Counsel
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
-14-
USA Network, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxx & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
12.4 Counterparts. This Agreement may be executed in one or more
------------
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
12.5 Entire Agreement; Third Party Beneficiaries. This Agreement, its
-------------------------------------------
Exhibits, and the documents and instruments and other agreements among the
parties hereto as contemplated by or referred to herein, or such other documents
that may be entered into by the parties referring to this Agreement, constitute
the entire agreement among the parties with respect to the subject matter hereof
and supersede all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
12.6 Severability. In the event that any provision of this Agreement
------------
or the application thereof becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to
replace such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such void or unenforceable provision.
12.7 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of California, regardless of the laws
that might otherwise govern under applicable principles of conflicts of law
thereof. Each of the parties hereto irrevocably consents to the jurisdiction of
any state or federal court within the Central District of California in
connection with any matter based upon or arising out of this Agreement or the
matters contemplated herein, agrees that process may be served upon them in any
manner authorized by the laws of the State of California for such persons and
waives and covenants not to assert or plead any objection which they might
otherwise have to such jurisdiction and such process.
-15-
12.8 Rules of Construction. The parties hereto agree that they have
---------------------
been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.
12.9 Assignment. No party may assign either this Agreement or any of
----------
its rights, interests, or obligations hereunder without the prior written
approval of the other parties. Notwithstanding the above, (a) TM Corp may
assign all of its rights and obligations under this Agreement to any entity that
is a controlled subsidiary of TM Corp, provided such party agrees in writing to
be bound to the terms of this Agreement; and (b) TMOL may assign all of its
rights and obligations under this Agreement to any entity that acquires control
of TMOL by means of a sale or merger of TMOL or a sale of all or substantially
all of TMOL's assets, provided such entity agrees in writing to be bound to the
terms of this Agreement. Subject to the preceding sentence, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
12.10 Effectiveness. This Agreement shall become effective upon the
-------------
consummation of the Merger contemplated by the Reorganization Agreement. Prior
to that time, this Agreement shall have no force and effect. In the event the
Reorganization Agreement terminates, this Agreement shall be null and void, and
of no further force and effect.
12.11 USAi Undertaking. USAi and TM Corp shall cause Ticketmaster
----------------
Companies to comply with all obligations of this Agreement.
* * * *
-16-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized respective officers as of the date first
written above.
TICKETMASTER MULTIMEDIA HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------
Title: E.V.P.
-----------------------------------
TICKETMASTER CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------
Title: C.O.O.
-----------------------------------
USA NETWORKS, INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
------------------------------------
Senior Vice President and General
Title: Counsel
-----------------------------------
ACKNOWLEDGED AND AGREED:
CITYSEARCH, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Name: Xxxxxx X. Xxxxxx
----------------------
Title: President
---------------------
* * * LICENSE AND SERVICES AGREEMENT * * *
EXHIBIT A - SERVICES
TM Corp will provide the following services, providing the same level of service
generally as currently provided (subject to appropriate adjustments for changes
in market conditions):
. all order processing, payment processing, and fulfillment services for TM
Merchandise and TM Tickets following Online Ticketing and Sale, including
shipping and handling
. consumer service inquiries
. merchandising services for entertainment-related TM Merchandise (Concert,
Sports, Theater, Family and Fine Arts) that TMOL sells
. collection of all proceeds of TM Ticket sales and remittance by TM Corp to
Client Venues
. collection of all Fees and remittance by TM Corp to TMOL of such amounts as
are due pursuant to this Agreement
. collection and remittance of merchandising revenue for TM Merchandise
access to TM Data necessary to engage in Online Ticketing and Sale and
Online Promotion, meeting at least the following performance standards:
. 7 days per week, approximately, 7:00am to 11:00pm, for each U.S. time
zone, real time access
. responses to requests made to the TM Corp gateway will be consistent
with current practices or TM Corp shall use its commercially
reasonable efforts to minimize the response time for requests made to
the TM Corp gateway
. volume handling sufficient to process 3,500,000 Ticket sales in year
ended 1998; 7,200,000 Ticket sales in year ended December 31, 1999;
11,100,000 Ticket sales in year ended December 31, 2000; and
15,300,000 Ticket sales in year ended December 31, 2001
. data base services (data mining, data warehousing)
EXHIBIT B - EXPENSE GUIDELINES
The following are comprehensive, and by way of limitation, not example:
. fulfillment cost, including shipping and handling
. direct costs associated with sales of TM Merchandise
. call center costs for consumer service inquiries shall be reasonably
allocated but not to exceed [*] per ticket
. third-party royalties (to the extent owed by Ticketmaster Companies) under
the Agreements set forth on Exhibit H
. secondary commissions to Client Venues
. credit card processing expenses
. credit card charge-backs
The costs outlined above that involve allocated costs (such as fulfillment
costs, call center costs and customer service costs) will be charged on a basis
no less favorable to TMOL than similar charges by TM Corp to other third parties
(taking into account any cost savings associated with Online Ticket distribution
as compared to other Ticket distribution). TMOL will have rights to review the
calculation of such costs.
TM Corp will use commercially reasonable efforts to charge TMOL's consumers the
same shipping charge and handling fees charged to TM Corp's telephone customers.
Such fees will be based on an actual or average cost per order.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
EXHIBIT C - TRADEMARK USE GUIDELINES
1. These trademark usage guidelines apply to the authorized use of all of the
Trademarks in connection with the Online Ticketing and Sale and Online
Promotion of TM Tickets and TM Merchandise, whether in advertisements,
labels, product guides, catalogs, brochures, instruction manuals, customer
communications, press releases, packaging, electronic communications and
all other uses of the Trademarks.
2. The following general rules apply:
. Spell the trademark correctly and do not abbreviate it.
. Use capitalization consistently.
. Use a standard appearance for the trademark.
. Use a proper trademark notice at least once, the first time the Trademark
appears: we prefer you to use the notice each time the trademark is used.
Use (R) for registered trademarks and service marks, "TM" for unregistered
trademarks, and "SM" for unregistered service marks. If you have any
questions about which marks are registered, ask us.
. Use the Trademark only as a brand name in conjunction with a specific
product or service, e.g., Productname Tickets. "Productname " alone is not
appropriate. Use the trademark only as an adjective modifying a generic
product ("the Productname Tickets"), and never as a noun or a verb ("the
Productname ").
. Always give Ticketmaster Corporation attribution as the trademark owner any
time the Trademarks are used, e.g., " Productname is a trademark or
registered trademark of Ticketmaster Corporation".
3. TM Corp shall from time to time supply reasonable guidelines regarding
appearance of its logos in permitted uses, such as color, appearance, size,
clear space and fonts.
4. Restrictions:
Do not use the Trademarks in connection with any erotic or adult content,
content of an overtly sexual nature, or content containing profanity or
obscenity.
EXHIBIT D - TRADEMARKS
[*]
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
EXHIBIT E
EXISTING ADVERTISING AGREEMENTS
CALENDAR 1998 CALENDAR 1999
ALLOCATION TO ALLOCATION TO
ADVERTISER DATE OF AGREEMENT EXPIRATION DATE ONLINE ONLINE
------------------- ----------------- ------------------ ------------- --------------
Acura June 1, 1998 September 30, 1998 [*] --
Amtrak June 16, 1998 September 23, 1998 [*] --
BASEketball June 17, 1998 July 31, 1998 [*] --
Xxxx South March 19, 1998 May 12, 1998 [*] --
Xxxx South December 30, 1997 March 31, 1998 [*] --
CD Now December 29, 1997 January 31, 1998 [*] --
CD Now January 28, 1998 February 28, 1998 [*] --
City Search April 18, 1997 June 30, 1998 [*] --
Columbia Tri-Star December 19, 1997 February 6, 1998 [*] --
Columbia Tri-Star March 19, 1998 April 24, 1998 [*] --
Columbia Tri-Star May 29, 1998 July 17, 1998 [*] --
Columbia Tri-Star August 7, 1998 August 21, 1998 [*] --
ESPN Sportszone June 1, 1998 December 31, 1998 [*]* --
eToys June 1, 1998 June 23, 1998 [*] --
Excite June 3, 1997 June 30, 1998 -- --
Ford Motor Media December 17, 1997 January 31, 1998 [*] --
Ford Motor Media January 30, 1998 April 30, 1998 [*] --
Ford Motor Media March 26, 1998 June 30, 1998 [*] --
Ford Motor Media July 1, 1998 September 30, 1998 [*] --
Gap, The November 12, 1997 May 15, 1998 [*] --
Xxxxxx Guitars March 9, 1998 March 24, 1998 [*] --
Infoseek August 3, 1998 August 16, 1998 [*] --
Intel July 2, 1998 July 15, 1998 [*] --
Internet Shopping Network May 12, 1998 May 31, 1998 [*] --
Jam TV June 8, 1997 June 30, 1999 -- --
Kenwood August 3, 1998 October 31, 1998 [*] --
Lexus April 1, 1998 May 10, 1998 [*] --
Lexus April 1, 1998 May 31, 1998 [*] --
Los Angeles Times September 11, 1997 August 31, 1998 -- --
Mastercard October 23, 1995 November 30, 2000 [*]**
Microsoft June 9, 1998 September 23, 1998 [*] --
Music Boulevard January 14, 1998 February 15, 1998 [*] --
Music Boulevard February 11, 1998 March 16, 1998 [*] --
N2K April 23, 1998 April 30, 2000 [*] [*]
Nabisco June 16, 1998 August 16, 1998 [*] --
Nestle (Stouffers) October 23, 1997 May 31, 1998 [*] --
NY Times November 4, 1997 One year from availability -- --
Pillsbury December 11, 1997 February 28, 1998 [*] --
Red Lobster July 27, 1998 August 10, 1998 [*] --
Sonicnet February 13, 1998 March 31, 1998 [*] --
Sprint September 19, 1996 August 31, 2001 [*] pending
Sprint (May Movie Promo) May 4, 1998 June 7, 1998 [*] --
------------
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
CALENDAR 1998 CALENDAR 1999
ALLOCATION TO ALLOCATION TO
ADVERTISER DATE OF AGREEMENT EXPIRATION DATE ONLINE ONLINE
------------------- ----------------- ------------------ ------------- --------------
Tangueray May 26, 1998 June 30, 1998 [*] --
Tribune Interactive November 16, 1997 November 30, 1998 [*] --
UBL March 17, 1998 March 31, 1999 [*] [*]
UPS October 28, 1998 October 27, 1999 [*] [*]
Yahoo! June 1, 1998 August 13, 1999 [*] [*]
* Potential to earn $[*] based upon amount of click thrus.
** Represents [*]% of the monthly pro rata revenue from the annual
MasterCard Sponsorship Agreement, net of costs to venues. The amount
reflected in this schedule represents allocations from August 1998 (the
projected start of the merged entity) through October 1998 (the end of
the existing MasterCard Agreement), (i.e., $[*] - $[*] = $[*] / [*] =
$[*] / [*] * [*] = [*]).
--------------
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
23. Joint Development Agreement between Ticket New Ventures, Ltd. and CIE
Internatcional, S.A. de C.V. dated June 27, 1997
24. Joint Venture Agreement between Ticketmaster Australasia Holdings Inc. and
Victorian Arts Centre Trust dated June 16, 1995.
25. Shareholders Agreement among CANAL+ SA, Ticketmaster Ticketing Co., Inc.,
in the name and on behalf of Ticketmaster France Holdings, Co., and
Ticketmaster Ticketing Co., Inc., dated April 30, 1998.
26. Joint Venture Agreement between Ticketmaster Bass Australasia Holdings Pty
Ltd. and Ticketmaster Australasia Investments Pty Ltd. dated December 1,
1995
EXHIBIT H
CONTRACTS PROVIDING FOR FEE SHARING
1. Content Manager Agreement between Ticket Corp. and Intel Corporation dated
February 12, 1998
2. Development and Services Agreement with Starwave Corporation dated June 28,
1996
3. Cross-promotional, marketing, advertising and retail agreement with N2K
Inc. dated April 23, 1998
4. Content License, Promotion and Link Agreement with Yahoo!, Inc. dated June
1, 1998
5. Cross-promotional agreement with Knight Ridder New Media dated October 15,
1997
6. Cross-promotional agreement with Tribune Interactive, Inc. dated November
18, 1997
7. Cross-promotional agreement with The New York Times Electronic Media
Company dated November 4, 1997
8. Joint promotional agreement with The Los Angeles Times, a division of The
Times Mirror Company dated September 11, 1997
9. Cross-promotional agreement with JAM TV Corp. dated June 6, 1997
10. Distribution Agreement with Universal Studios Online, Inc. dated December
17, 1997
11. Cross-promotional agreement with DR Partners d/b/a Las Vegas Review Journal
dated March 6, 1998
