EXHIBIT 14
AMENDED AND RESTATED
ESPN/STARWAVE
MANAGEMENT AND SERVICES AGREEMENT
THIS AMENDED AND RESTATED MANAGEMENT AND SERVICES AGREEMENT including the
Exhibits attached hereto (this "AGREEMENT") is entered into as of June 18, 1998
by and between ESPN Enterprises, Inc., a Delaware corporation ("ESPN"), STARWAVE
CORPORATION, a Washington corporation ("STARWAVE") and ESPN/STARWAVE PARTNERS, a
New York General Partnership (THE "PARTNERSHIP"); provided that, this Agreement
shall only become effective upon the Effective Time, as defined in and pursuant
to that certain Agreement and Plan of Reorganization, of even date herewith, by
and among Infoseek, Infoseek Corporation, a Delaware corporation, Starwave
Corporation, a Washington corporation, and Disney Enterprises, Inc., a Delaware
corporation ("DEI") and shall cease and be of no further force and effect in the
event that the Effective Time does not occur; and provided further that, each of
the parties hereto agrees not to terminate, amend or otherwise alter this
Agreement, or waive any of its rights hereunder, at any time prior to
immediately following the Effective Time. This Agreement amends and restates in
its entirety the Management and Services Agreement by and between the parties
hereof entered into as of March 28, 1997 (the "Original Services Agreement").
DEI is a party to this Agreement solely with respect to the provisions of
Sections 3.3, 3.6, 5.2, 6.1, 6.2 and 10.7.
RECITALS
1. ESPN and Starwave entered into a Production Agreement, dated February 18,
1995 (the "Production Agreement") for the development and production of
certain interactive media products.
2. In connection with an investment in Starwave by DEI, ESPN and Starwave
desire to terminate the Production Agreement and to cause Affiliates of
each to form a partnership to develop, produce and exploit certain
interactive media products.
3. The Partnership desires to obtain from each of ESPN and Starwave and each
of ESPN and Starwave have agreed, subject to certain conditions, to license
or otherwise provide certain assets and certain services to the
Partnership.
4. Pursuant to an agreement and plan of reorganization and a stock and warrant
purchase agreement (collectively, the "Acquisition Agreements"), DEI has
agreed to acquire approximately a 43% interest in the voting equity of
Infoseek Corporation, a California corporation ("Infoseek"), subject to the
terms and conditions set forth in the Acquisition Agreements.
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5. In connection with the transaction contemplated under the Acquisition
Agreements, the Partners desire to amend and restate the Original Agreement
by entering into this Agreement.
THEREFORE, for good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, ESPN, Starwave and the Partnership hereby agree as
follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms have the following
meanings:
1.1 "ADVISORY COMMITTEE" has the meaning specified in the Partnership
Agreement.
1.2 "AFFILIATE" means, with respect to any person, any person directly or
indirectly through one or more intermediaries controlling, controlled by or
under common control with such person. Notwithstanding the foregoing, for
purposes of this Agreement, Starwave shall not be considered as an Affiliate of
ESPN or DEI.
1.3 "ANNUAL BUSINESS PLAN" has the meaning specified in the Partnership
Agreement.
1.4 "BROADBAND" means programming that requires transmission at data rates
which would enable real time, full screen, full motion video at equal to or
better than NTSC broadcast resolution.
1.5 "CONTENT" means audio and audio visual material, photographs, art
work, videos, graphics, text, and sound recordings.
1.6 "COSTS" means all direct costs and allocated costs, whether incurred
by ESPN or DEI (including, without limitation, costs associated with Section 3)
or Starwave (including, without limitation, costs associated with Section 4) or
by the Partnership (as referenced in the Partnership Agreement), that are
associated with the development, production and exploitation of the Sports
Products.
1.7 "ESPN CONTENT" means all Content that is 100% owned or controlled by
ESPN or its successors or assigns. For purposes of this Section 1.1, "control"
means the ability to grant the licenses set forth herein; provided however that
if such Content is subject to the payment of royalties or other consideration to
third parties, ESPN will notify Starwave in writing in advance and the
Partnership shall have the right, at its option, to include such Content in the
definition of ESPN Content.
1.8 "ESPN TRADEMARKS" means "ESPN", ESPNET", ESPN logo and the other
marks, trade names, trademarks, brands, names, personalities, logos and
representations thereof that are properties of ESPN or its Affiliates that
appear within the ESPN Content, Programming,
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Sports Products or any other materials created in association with this
Agreement and that ESPN or any of its Affiliates owns or controls.
1.9 "FIXED MEDIA PRODUCTS" means multimedia content products developed for
distribution to end users on any platform (including, without limitation, MS-
DOS, Windows, Macintosh, Sega, Nintendo, CD-ROM, Sony Playstation and 3DO
systems) designed to be read on an electronic device but excluding such products
if they include a Narrowband-delivered component and such products would not be
commercially competitive (as reasonably determined in good faith by the
Partners) without the inclusion of a Narrow-band delivered component.
1.10 "FORCE MAJEURE EVENT" has the meaning specified in Section 10.5.
1.11 "INTELLECTUAL PROPERTY RIGHTS" means any and all (by whatever name or
term known or designated) tangible and intangible and now known or hereafter
existing (a) rights associated with works of authorship throughout the universe,
including but not limited to copyrights, moral rights, and mask-works, (b)
trademark, service xxxx and trade name rights and similar rights, (c) trade
secret rights, (d) patents, designs, algorithms and other industrial property
rights, (e) all other intellectual and industrial property and proprietary
rights (of every kind and nature throughout the universe and however designated)
(including without limitation logos, character rights, "rental" rights and
rights to remuneration), whether arising by operation of law, contract, license
or otherwise, and (f) all registrations, applications, renewals, extensions,
continuations, divisions or reissues thereof now or hereafter in force
throughout the universe (including without limitation rights in any of the
foregoing).
1.12 "NARROWBAND" means Programming that does not require transmission at
data rates which would enable real time, full screen, full motion video at equal
to or better than NTSC broadcast resolution.
1.13 "PARTNERSHIP" means the general partnership formed by Affiliates of
Starwave and ESPN and "PARTNERSHIP AGREEMENT" means the amended and restated
partnership agreement between such Affiliates, dated as of the date hereof.
1.14 "PERSON" means any individual, partnership, corporation, trust or
other entity.
1.15 "PRODUCTION AGREEMENT" has the meaning specified in the Recitals.
1.16 "PROGRAMMING" means the programming included in the Sports Products
including, without limitation, all HTML, Java, and/or other formatted text
files, all related graphics files, animation files, data files, multimedia
files, modules, routines and objects, and the computer software and all of the
script or program files required to exploit such materials and that collectively
control the display of and end user interaction with the programming.
1.17 "REMOTE ACCESS PRODUCTS" means Programming intended for distribution
by any Narrowband interactive transmission method. This definition excludes any
and all Programming
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that requires Broadband transmission and also excludes (a) products developed
for PDAs, pagers, screen phones and other future handheld devices and (b) Fixed
Media Products.
1.18 "RESTATED INITIAL BUSINESS PLAN" has the meaning specified in the
Partnership Agreement.
1.19 "SPORTS PRODUCTS" means the Remote Access Products developed,
produced, marketed, distributed or otherwise exploited under the Partnership
Agreement containing professional or amateur sports Content, news or
information.
1.20 "STARWAVE TRADEMARKS" means "Starwave" and the other marks, trade
names, trademarks, brands, names, personalities, logos and representations
thereof that are properties of Starwave Partner or its Affiliates that appear
within the Sports Products or any other materials created in association with
this Agreement and that Starwave Partner owns or controls.
1.21 "TECHNOLOGY" means all software, hardware and middleware required or
appropriate to (i) transform the Content into the Programming, (ii) create,
modify or maintain the Programming, or (iii) deliver the Programming in an
online format.
1.22 "TERM" shall have the meaning set forth in Section 9.1.
1.23 "TERRITORY" means the United States and Canada.
2. STARWAVE OBLIGATIONS. During the Term, Starwave shall have the following
obligations to the Partnership:
2.1 HOSTING/NETWORK INFRASTRUCTURE. Starwave shall host all portions of
the Sports Products on Starwave servers, at the highest quality levels as
Starwave performs hosting services for any third party (i.e., having
substantially similar service requirements) and at a nominal xxxx-up to Costs on
a cost-effective basis and on most-favored-nations terms as those provided to
any similarly situated third party having substantially similar service
requirements. Starwave shall be solely responsible for all Starwave network
infrastructure (i.e., telecommunications and connections to the Internet) in
conformance with the level of service that Starwave provides to itself or its
most valued partners and customers.
2.2 BILLING, COLLECTION, CUSTOMER SERVICE FUNCTIONS. Starwave shall be
responsible for billing, collection, customer service and other "back office"
functions for the Partnership at a nominal xxxx-up to Costs and on most-favored-
nations terms as those provided to any third party (i.e., having substantially
similar service requirements). All such services shall be performed by Starwave
at the highest quality levels Starwave performs services for any third party
(i.e., having substantially similar service requirements) and at a nominal xxxx-
up to Costs on a cost-effective basis and on most-favored-nations terms as those
provided to any similarly situated third party (i.e., having substantially
similar service requirements).
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2.3 TECHNOLOGY DEVELOPMENT AND MAINTENANCE. Starwave shall be responsible
for the technology development and maintenance relating to the Sports Products,
at a nominal xxxx-up to actual costs and on most-favored-nations terms as those
provided to any third party (i.e., having substantially similar service
requirements), to the extent commercially reasonable. All such services shall
be performed by Starwave at the highest quality levels Starwave performs
services for any third party (i.e., having substantially similar service
requirements) and at a nominal xxxx-up to Costs on a cost-effective basis and on
most-favored nations terms as those provided to any similarly situated third
party (i.e., having substantially similar service requirements). It is the
intention of the parties that the preponderance of the technology development
and maintenance relating to the Sports Products shall be performed by Starwave.
The General Manager (as defined in the Partnership Agreement), in accordance
with the Restated Initial Business Plan or Annual Business Plans, may acquire or
license additional or substitute Technology (i) on an incidental and nonmaterial
basis, (ii) if the Costs of acquiring or licensing Technology from a third party
are significantly less than the Costs to the Partnership of acquiring or
licensing such or similar Technology from Starwave and such third party
Technology from Starwave is fully scaleable and compatible with other Technology
used for the Sports Product and otherwise appropriate for its intended uses,
(iii) or if otherwise agreed and otherwise appropriate for use in the Sports
Products. In addition, the General Manager, in accordance with the Restated
Initial Business Plan or Annual Business Plans may acquire or license additional
or substitute Technology if, in the General Manager's reasonable opinion, the
inability to so acquire or license such Technology would have a material impact
on the overall quality and competitive position of the Sports Products. In such
event, Starwave shall have a three (3) day period to meet with the General
Manager to attempt to resolve the issues. If the issues have not been resolved
in the three (3) day period, the General Manager shall be entitled to present
the issues to the Partners for resolution based upon the mutual agreement of the
Partners. During the Term, such technology development and maintenance (or a
portion thereof) may become a responsibility of the Partnership or the Partners
collectively, upon the mutual agreement of the parties.
2.4 USAGE TRACKING.
(a) Starwave will track traffic in the Sports Products and shall
provide ongoing access to reports on such traffic to ESPN.
(b) Starwave shall from time to time promptly deliver to ESPN upon
ESPN's request, the names, addresses and other identifying information of users
of the Sports Products who complete merchandise, advertising, promotional or
subscription transactions over the Sports Products.
(c) The parties shall have the right to use all data provided by
Starwave under subsections (a) or (b) above in any manner, subject to a mutually
agreed privacy policy and credit policy. All such data shall be owned by the
Partnership. Each party agrees that during the term it shall not provide such
data to any third party, except as may be mutually agreed.
(d) Starwave acknowledges and agrees that the Sports Products may
contain registration forms and/or questionnaires for users to complete in
connection with contests,
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promotions or other features of the Sports Products. Starwave acknowledges and
agrees that such information shall be solely owned by the Partnership and may be
used for either party's and its respective Affiliates' business purposes, but
may not be provided to any third party (except advertisers), except as may be
mutually agreed.
2.5 EXISTING TECHNOLOGY. Starwave shall provide, on a royalty free basis,
Technology existing as of the date of this Agreement, including, without
limitation, interactive software development tools, middleware and engines owned
or licensed by Starwave or its Affiliates (provided that Starwave has the right,
with no additional monies owed, to license any such technology to ESPN, subject
to Section 5.1) for use in the development and delivery of the Sports Products.
Such Technology shall be licensed by Starwave, on a royalty free.
2.6 OTHER TECHNOLOGY. Starwave shall provide such additional technology
owned or licensed by Starwave or its Affiliates (provided that Starwave has the
right, with no additional monies owed, to license any such technology to ESPN,
subject to Section 5.1) that may be useful or necessary in the development of
the Sports Products, under an agreement to be negotiated in good faith between
the parties within sixty (60) days of the date hereof. If an agreement is not
timely entered into, such Technology shall be provided by Starwave at fair
market rates.
2.7 INFRASTRUCTURE. Starwave shall provide appropriate staffing, support
and infrastructure to fulfill its obligations under this Agreement, including,
without limitation, sufficient dedicated personnel to meet its obligations set
forth under Sections 2.1, 2.2., 2.3 and 2.4, in accordance with the Restated
Initial Business Plan and any Annual Business Plan.
2.8 OTHER NAMES. Starwave shall assign to the Partnership all of its
right, title and interest to any descriptive names and URLs containing the word
"zone" when intended for use or associated with a sport or sports (e.g.,
GolfZone).
3. ESPN AND DEI OBLIGATIONS. During the Term, ESPN and DEI shall have
the following obligations to the Partnership.
3.1 CONTENT. Pursuant to Section 6.1, ESPN shall provide the Partnership
with a royalty-free license to all ESPN Content or Content of its successors-in-
interest which is appropriate for use in the Sports Products, including without
limitation both television and radio programming. For the avoidance of doubt,
Content provided shall include without limitation scores, headlines, regular
programs (e.g., Sports Center), special programs (e.g., NFL draft), columnists
(e.g., Xxxxx Xxxxxxx), subject to cancellation of current programming and the
inclusion of all owned or controlled programming as set forth in Section 1.7.
3.2 CONTENT DEVELOPMENT/TRANSFORMATION/INTEGRATION. At Costs set forth in
the Restated Initial Business Plan or applicable Annual Business Plan, ESPN
shall be responsible for the development of ESPN Content for the Sports Products
and for the transformation of ESPN Content into Programming and integration of
the Programming into the Sports Products. The senior employee in such group
shall report on a day-to-day basis to the General Manager, with
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direct reporting as well to an ESPN designated executive for oversight of
editorial and creative aspects of the ESPN Content.
3.3 ON-AIR MARKETING/PROMOTION. At no charge, ESPN shall provide
reasonable marketing and promotion for the Sports Products on its television and
radio networks, in amounts, formats and frequencies determined by ESPN, in its
sole discretion, provided, that ESPN agrees to provide such marketing and
promotion in a manner consistent with current levels of marketing and promotion.
3.4 INFRASTRUCTURE. ESPN shall provide appropriate staffing, support and
infrastructure to fulfill its obligations under this Agreement.
3.5 ON-AIR TALENT. Subject to Section 3.7(a) and (c), and at no charge
(except for out-of-pocket costs), ESPN shall provide appropriate access (in its
sole discretion) to on-air talent for use in connection with the Sports
Products.
3.6 GROUP ADVERTISING SALES. At Costs set forth in the Restated Initial
Business Plan or applicable Annual Business Plan, DEI shall provide, with
ongoing participation by the Partnership, group advertising sales services
(i.e., combining advertising sales services for the Sports Products of the
Partnership with additional Sports Products that may be developed by the
Partnership or the parties, individually or in other arrangements such as
XXXXxxx.xxx and Disney Online).
3.7 ESPN'S CONTROL.
(a) EDITORIAL AND CREATIVE. ESPN shall exercise sole and final
control over all editorial and creative aspects of the Sports Products and all
portions thereof.
(b) MARKETING AND PROMOTIONS. ESPN shall exercise sole and final
control over all uses or references to any ESPN Trademark contained in marketing
and promotions associated with the Sports Products. Any use of an ESPN
Trademark by the Partnership or Starwave shall require the prior approval of
ESPN, which may be withheld at ESPN's sole discretion. ESPN shall use its
reasonable efforts to promptly respond to requests from the Partnership for use
of the ESPN Trademarks. ESPN shall cooperate in good faith with the Partnership
to agree on a templated use of ESPN Trademarks from time to time to avoid
recurrent approvals.
4. MERCHANDISING
DEI agrees to provide (or cause its Affiliates to provide) e-commerce
services to the Partnership, including, without limitation, store design,
transaction processing, web hosting, inventory management, fulfillment and
customer service. In exchange for such services, the Partnership shall pay DEI
its costs in providing such services, plus a to-be-agreed markup on
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such costs or a to-be-agreed upon revenue share. In addition, the Partnership
shall have joint ownership of all customer information for use for its business
purposes
5. EXCLUSIVITY
5.1 STARWAVE EXCLUSIVITY. During the Term and on a worldwide basis and
except for activities associated with the development and expansion of the
sports Component of the Portal Products and further excluding the Sports
Products within the Partnership, Starwave and its Affiliates shall not develop,
distribute, produce, exploit or provide services of any nature or provide a
license or permit a third party to utilize any of their respective Intellectual
Property Rights with respect to any Remote Access Products containing
professional or amateur sports news or information.
5.2 DEI EXCLUSIVITY. During the Term and on a worldwide basis, DEI and
its Affiliates shall not develop, distribute, produce, exploit or provide
services of any nature or provide a license or permit a third party to utilize
any of their respective Intellectual Property Rights with respect to any Remote
Access Products containing professional or amateur sports news or information.
5.3 ADDITIONAL REMOTE ACCESS PRODUCTS. If ESPN determines, in its sole
discretion, to develop Remote Access Products that are targeted for users on an
international or foreign (country or regional) basis, the Partnership shall
participate in such development on similar terms to those reflected in the
Partnership Agreement (while taking into consideration additional terms and
potential partners that may be applicable in any particular potential
transaction).
5.4 NO OTHER RESTRICTIONS. Except as expressly set forth in this Section
5, neither ESPN and its Affiliates, on the one hand, nor Starwave and its
Affiliates, on the other hand, shall be subject to any restrictions on the
licensing, use, distribution or other exploitation of their respective
properties (including all Intellectual Property Rights therein), that either of
their respective Affiliates own, control, have a license to, or in which they
have any other form of right, title or interest.
5.5 BROADBAND APPLICATIONS. For clarification purposes, ESPN and its
Affiliates, on the one hand, and Starwave and its Affiliates, on the other hand,
in their respective sole discretion, may develop, produce, exploit or provide
services of any nature with respect to programming designed specifically for
Broadband delivery (i.e., content that requires Broadband transmission to
satisfactorily deliver services to consumers). ESPN agrees to investigate
(without any obligation) cooperation with Starwave in the development of
products designed for Broadband delivery.
6. PROPRIETARY RIGHTS
6.1 GRANT OF RIGHTS. Subject to the Partnership's and Starwave's
compliance with the terms and conditions set forth herein, including without
limitation ESPN's rights set forth in Section 3.7, ESPN hereby grants the
Partnership (by Partnership or by a third party on behalf of
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Partnership) the following limited, royalty-free, non-exclusive (except as
exclusive with respect to Narrowband services in accordance with the provisions
hereof), non-transferable licenses, without right of sublicense, during the Term
hereof:
(a) to use, reproduce, modify and adapt the ESPN Content to create the
Programming;
(b) to reproduce, transmit, distribute, display and perform the
Programming worldwide as part of the Sports Products; and
(c) to reproduce and display the ESPN Trademarks (including the
descriptive names for the Sports Products).
6.2 USE OF DISNEY NAME. Neither the Partnership nor Starwave shall have
the right to use the name, likeness or voice of Xxxx Disney, the word "Disney,"
any likeness of any DEI animated character or any other trademark, tradename or
logo of DEI for any manner whatsoever; provided, that the Partnership may use
such items solely as necessary for editorial purposes.
6.3 PROPRIETARY NOTICES. As a condition to the grant of rights hereunder,
any matter containing ESPN Content, including without limitation the Programming
shall bear properly located copyright and trademark notices as prescribed by law
in ESPN's name. The Partnership and Starwave will comply with such instructions
as to form, location and content of the notice as ESPN may give from time to
time. If by inadvertence a proper copyright notice in ESPN's or the ESPN
Affiliate's name, as applicable, is omitted from the Programming or any material
containing ESPN Content, the Partnership and Starwave agree at their respective
expense (to the extent the omission is caused by the Partnership or Starwave) to
use all reasonable efforts to prospectively correct any such omission. The
Partnership and Starwave agree to promptly respond to ESPN's request to make any
such corrections.
6.4 OWNERSHIP OF MATERIALS DEVELOPED BY EACH PARTY. Subject to ESPN's
ownership at all times of the ESPN Content, and to Sections 6.5 and 6.6, each
party shall own all right, title and interest in (a) any and all materials it
developed prior to or during the Term and all Intellectual Property Rights
therein and (b) any and all Technology, Content (other than ESPN Content, if
any) and Programming it developed and funded (i.e., without Partnership or joint
funding) during the Term and all Intellectual Property Rights thereto.
6.5 PARTNERSHIP OWNED MATERIALS. The Partnership shall jointly own all
the Technology, Content (other than ESPN Content, if any) and Programming
developed and funded by the Partnership during the Term for the Sports Products.
6.6 OWNERSHIP BY ESPN.
(a) The Partnership and Starwave acknowledge and agree that, as
between the Partnership and Starwave, on the one hand, and ESPN, on the other
hand, the ESPN Content, and all portions and derivative works thereof (other
than the Programming), whether created by
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the Partnership, Starwave or ESPN, shall be owned by ESPN and to the extent that
the Partnership or Starwave owns any right, title and interest in the ESPN
Content, each hereby assigns all such right, title, and interest therein to
ESPN, including without limitation all Intellectual Property Rights therein,
provided that Starwave shall retain all right, title and interest, including all
Intellectual Property Rights in, all development tools, software or other
technology developed and funded by Starwave and embodied in or used by Starwave
in connection with Starwave's development of the Programming. Subject only to
Section 5 and Starwave's ownership rights hereunder and under this Partnership
Agreement, ESPN may utilize, distribute and otherwise exploit in any manner the
ESPN Content and derivative works thereof (other than the Programming) now
existing or hereafter developed without any obligation to the Partnership or
Starwave; it being understood that no license under Starwave Intellectual
Property Rights shall be implied from the foregoing.
(b) ESPN shall own all URLs containing "ESPN", and any and all other
URLs with any variant of any ESPN Trademark, including, without limitation, any
URLs that also include any other name or description in addition to an ESPN
Trademark.
(c) ESPN shall own the descriptive names for the Sports Products
(i.e., ESPNET SportsZone, ESPNET Arena and additional or substitute descriptive
names) that contain the ESPN Trademark.
(d) Starwave Partner shall own all Technology used in connection with
the operation of the Sports Products that was owned by Starwave Partner prior to
the Effective Time.
(e) The Partnership has the sole right to license the descriptive
names for the Sports Products; provided that the Partnership shall be required
to provide such a license to ESPN or its Affiliates for their own business
purposes for a fair market value royalty to be paid to the Partnership (as
determined in good faith by the Partners). If such license is to a third party
(other than Infoseek or an Infoseek Affiliate (but excluding DEI and its
Affiliates) in connection with Portal Products (as defined in the Partnership
Agreement)), the terms shall include a fair market value royalty to be paid to
the Partnership (as determined in good faith by the Partners).
6.7 NO ADDITIONAL PARTICIPATION. Nothing in this Agreement conveys to the
Partnership or Starwave and, other than as specifically set forth hereunder, the
Partnership and Starwave shall not have or acquire, any right to participate in
any other promotions or activities relating to the ESPN Content or any other
ESPN activity or product, which rights are retained exclusively by ESPN.
6.8 LITIGATION. Should one party become aware of any infringing use of
its property (including Intellectual Property Rights), such party shall notify
the other party and the other party may, within its sole discretion, undertake
to prosecute necessary actions to prevent such use or distribution. In the
event that both parties are joined in any such litigation, the decisions of the
counsel of the party with the affected properties with reference to matters of
procedure, conduct of such litigation and/or the handling thereof, shall prevail
and the other party shall cooperate
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with and assist counsel. Any recovery shall be the sole property of the party
with the affected properties.
7. CONFIDENTIAL INFORMATION
The definition and use of each party's "Confidential Information" by the other
parties shall be governed by the terms of that certain Mutual Non-Disclosure
Agreement between the parties dated March 28, 1997
8. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION
8.1 WARRANTIES OF STARWAVE. Starwave represents and warrants that (a) it
has the right, power and authority to enter into this Agreement and fully to
perform its obligations under this Agreement; (b) the making of this Agreement
by it does not violate any agreement existing between it and any other person or
entity; (c) Starwave complies, and at all times shall comply, with all
applicable laws, rules and regulations in effect at the time services are
performed pursuant to this Agreement pertaining to the subject matter hereof;
and (d) Starwave shall not exercise any of the rights granted to it under or
pursuant to this Agreement in a manner that shall violate any applicable law,
rule or regulation.
8.2 INDEMNIFICATION OBLIGATIONS OF STARWAVE. Starwave agrees to, and
shall, indemnify, defend and hold harmless ESPN and its Affiliates and their
respective directors, shareholders, officers, agents, employees, successors and
assigns from and against any and all claims, demands, suits, judgments, damages,
costs, losses, expenses (including reasonable attorneys' fees and expenses) and
other liabilities arising from actions brought by third parties, for (a) any
breach or alleged breach of any of the representations or warranties made by it
under this Agreement; (b) any unauthorized use by it or any of its
subcontractors of any ESPN Content or any portion of the Programming; (c) any
infringement of such third party's copyrights contained in the portions of the
Programming that are owned or controlled by Starwave or in all technology,
software, data, and content therein that are supplied by Starwave; provided that
ESPN shall promptly notify Starwave of any such claim and Starwave shall be
given sole control and bear full responsibility for the defense (including any
settlements) of any such claim; and ESPN shall provide Starwave with prompt
notice and full information and reasonable assistance at ESPN's expense with
respect to claims covered under this Section 8.2. Starwave shall keep ESPN
informed of, and consult with ESPN in connection with the progress of such
litigation or settlement; and Starwave shall not have any right, without ESPN's
written consent, to settle any such claim if such settlement arises from or is
part of any criminal action, suit or proceeding or contains a stipulation to or
admission or acknowledgment of, any liability or wrongdoing (whether in
contract, tort or otherwise) on the part of any ESPN Affiliate.
8.3 WARRANTIES OF ESPN. ESPN represents and warrants that (a) it has the
right, power and authority to enter into this Agreement, to grant the licenses
herein granted, and to fully perform its obligations under this Agreement; (b)
the making of this Agreement by it does not violate any agreement existing
between it and any other person or entity; (c) it has all necessary rights in
and to the Programming and any ESPN Content provided by ESPN hereunder for use
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within the scope of this Agreement; (d) it complies, and at all times shall
comply, with all applicable laws, rules and regulations in effect at the time
services are performed pursuant to this Agreement pertaining to the subject
matter hereof; and (e) ESPN shall not exercise any of the rights granted to it
under or pursuant to this Agreement in a manner that shall violate any
applicable law, rule or regulation.
8.4 INDEMNIFICATION OBLIGATIONS OF ESPN. ESPN agrees to, and shall,
indemnify, defend and hold harmless Starwave and its Affiliates, and its
directors, shareholders, officers, agents, employees, successors and assigns
from and against any and all claims, demands, suits, judgments, damages, costs,
losses, expenses (including reasonable attorneys' fees and expenses) and other
liabilities arising from actions brought by third parties, in connection with or
related to, directly or indirectly, (a) its performance of the Agreement; (b)
any breach or alleged breach of the representations, warranties and agreements
made by it under this Agreement; (c) its activities hereunder, including without
limitation, any unauthorized use by it or any of its subcontractors of any ESPN
Content or any portion of the Programming; (d) any act or omission of it, its
directors, officers, agents, employees or subcontractors; or (e) any violation
or infringement by ESPN of any right of privacy or publicity or any other
Intellectual Property Right within the Territory or any libelous defamatory,
obscene or unlawful material contained in the ESPN Content within the Territory.
Starwave shall promptly notify ESPN of any such claim, and ESPN shall bear full
responsibility for the defense of such claim (including any settlements)
provided however, that (i) ESPN shall keep Starwave informed of and consult with
Starwave in connection with the progress of such litigation or settlement; and
(ii) ESPN shall not have any right, without Starwave's written consent, to
settle any such claim if such settlement arises from or is part of any criminal
action, suit or proceeding or contains a stipulation to or admission or
acknowledgment of, any liability or wrongdoing (whether in contract, tort or
otherwise) on the part of Starwave.
8.5 CHOICE OF COUNSEL AND PROTECTION OF RIGHTS. Each party shall have the
right, in its absolute discretion, to employ attorneys of its own choice and to
institute or defend any matter, claim, action or proceeding and to take any
other appropriate steps to protect its Intellectual Property Rights and all
rights and interest in and title to its web sites, technology, content and every
element thereof and, in that connection, to settle, compromise in good faith, or
in any other manner dispose of any matter, claim, action, or proceeding and to
satisfy any judgment that may be rendered, in any manner as such party in its
sole discretion may determine.
8.6 NO OTHER REPRESENTATIONS. Except for the representations and
warranties specifically set forth in this Agreement, each party makes no other
representations and warranties of any nature whatsoever to the other parties.
8.7 NO SPECIAL DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 8.2 AND
8.4, NO PARTY SHALL UNDER ANY CIRCUMSTANCES, BE LIABLE TO ANOTHER PARTY FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR EXEMPLARY DAMAGES (INCLUDING
WITHOUT LIMITATION, LOST PROFITS, LOSS OF ANTICIPATED BUSINESS, LOSS OF DATA OR
BUSINESS
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LOSSES) EVEN IF SUCH DAMAGES ARE FORESEEABLE AND EVEN IF THE BREACHING PARTY HAS
BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
9. TERM AND TERMINATION
9.1 TERM. The term of this Agreement shall commence as of the Effective
Time and shall continue for the same time period that each of ESPN and Starwave
are partners in the Partnership (the "Term").
9.2 RENEWAL. Unless earlier terminated pursuant to Section 9.3, the
parties shall begin renewal negotiations in good faith beginning on the eight
(8) year anniversary of the date hereof. If the parties do not reach an
agreement to extend this Agreement on mutually acceptable terms within three
hundred sixty (360) days after negotiations begin, the exclusivity provisions
contained in Sections 5.1 and 5.2 shall be deemed modified, with no action
required of the parties, to permit either party to develop, distribute, produce,
exploit or provide services with respect to competitive Remote Access Products;
provided, that except for such modifications, this Agreement shall continue in
full force and effect until the expiration of the Term and, provided, further,
that neither party may engage in such activities with respect to Sports
Products then available to consumers in any manner or available prior to the
expiration of the Term. In the event the exclusivity provisions contained in
Sections 5.1 and 5.2 shall be deemed modified, and either Partner develops,
distributes, produces, exploits or provides services with respect to Remote
Access Products competitive with the Sports Products, such Partner's Remote
Access Products competitive with the Sports Products shall be provided with a
prominent position on the Sports Products, via an above-the-fold link on the
start page for the Sports Product, until the end of the Term.
9.3 TERMINATION. Without prejudice to any other rights or remedies
available to the parties, ESPN and Starwave (but not the Partnership) shall each
have the right, in its sole discretion, to terminate this Agreement upon written
notice to the other in the event of the occurrence of one or more of the
following:
(a) The termination of the Partnership Agreement in accordance with
its terms; or
(b) The other party makes any assignment for the benefit of creditors
or files a petition in bankruptcy (provided, that with respect to ESPN's ability
to terminate in the event that Starwave Partner or Infoseek files a petition in
bankruptcy, such petition shall have been approved by a decision of the majority
of Infoseek's Disinterested Directors (as defined in that certain Governance
Agreement by and between Infoseek and DEI) or is adjudged bankrupt or is placed
in the hands of a receiver; or
(c) With respect to Starwave's termination rights, ESPN willfully
misuses the Starwave Marks or with respect to ESPN termination rights, Starwave
willfully misuses the ESPN Marks, and (i) the willful misuse occurs repeatedly
and in each case in material breach of
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this Agreement, and (ii) the willful misuse occurs more than three (3) times in
any one year period ("Excepted Misuses"), and (iii) with respect to each such
willful misuse, the breaching party fails to Cure such misuse within sixty (60)
days after the nonbreaching party delivers written notice of the misuse to the
other party; provided however that (w) if the misuse consists of displaying the
ESPN Marks within the Sports Products in a manner such that the appearance of
the ESPN Marks does not conform to the requirements set forth herein, and this
misuse does not have a material adverse effect on ESPN, such misuse shall be
excluded from the Excepted Misuses; and (x) if the party misusing the Marks of
the other party is using its best efforts to Cure the misuse, the Cure period
shall be extended for so long as such efforts are exercised; and (y) if a
willful misuse is Cured within forty eight (48) hours of an officer of the
breaching party being notified in writing of such misuse by the nonbreaching
party, such willful misuse shall not count toward the three (3) Excepted Misuses
set forth above; and (z) if a party has not willfully misused the other party's
Marks within any six (6) month period during the term hereof, all misuses
occurring prior to the commencement of such six (6) month period shall not count
toward the three (3) Excepted Misuses set forth above. In the event that a party
misuses the party's Marks, (whether willfully or otherwise), the party that
misused the Marks shall implement commercially reasonable policies to address
the prevention of the occurrence of such misuse in the future.
For purposes of this Section 9.3(c), the following terms shall have the
following meanings:
(i) "Marks" shall mean ESPN Marks with respect to ESPN or Starwave
Marks with respect to Starwave; and
(ii) "misuse" by Starwave of an ESPN Trademark shall mean a use of
the ESPN Marks in a manner which materially breaches the provisions set forth in
Section 6.1 or 6.2 of this Agreement, either directly by Starwave or by a third
party licensed by Starwave to use the Marks; and
(iii) "Cure" shall mean if the misuse is performed directly by a party
hereto, correcting the display or misapplication of the other party's Marks, or
if the misuse is performed by a third party under license by a party hereto,
terminating the license or purported rights granted by such party to use such
Marks and using reasonable efforts to cause the third party to cease its misuse
of the other party's Marks.
The Partners acknowledge and agree that the nature of Remote Access
Products and the Narrowband medium in general may result in a misuse of a
Partner's Marks being displayed in multiple locations and across multiple
networks. For the avoidance of doubt, if the same application of a Xxxx is
displayed multiple times or in multiple places as a direct or indirect result of
the Narrowband medium or the manner in which Remote Access Products are
operated, transmitted or otherwise made available electronically, such repeated
displays shall constitute no more than one misuse for purposes of counting
Excepted Misuses hereunder.
9.4 [INTENTIONALLY OMITTED.]
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9.5 SURVIVAL. Unless otherwise specified, all obligations that accrue
prior to any expiration or termination of this Agreement shall survive such
expiration or termination. In addition, and without limiting the generality of
the preceding sentence, Sections 6, 7, 8, 9, and 10 shall survive the expiration
or termination of this Agreement for any reason.
9.6 INJUNCTIVE RELIEF. Each party acknowledges and agrees that the other
parties may be irreparably harmed by any material breach of this Agreement by
it. Therefore, each party agrees that in the event that it breaches any of its
obligations hereunder, the other parties in addition to all other remedies
available to it under this Agreement, or at law or in equity, shall be entitled
to seek all forms of injunctive relief including decrees of specific
performance, without showing or proving that it sustained any actual damages and
without posting bond.
10. GENERAL PROVISIONS
10.1 NOTICES. All notices which either party is required or may desire to
serve upon another party shall be in writing and addressed as follows:
(a) if to ESPN:
ESPNET SportsZone
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Buena Vista Internet Group
000 X. Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to DEI:
Disney Online
000 X. Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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with a copy to:
Disney Enterprises, Inc.
000 X. Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(c) if to Starwave:
Starwave Corporation
00000 XX Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(d) if to the Partnership, c/o:
Starwave Corporation
00000 XX Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
DOL Online Investments, Inc.
000 X. Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any such notice may be served personally or by mail (postage prepaid),
facsimile (provided oral confirmation of receipt is immediately obtained and a
hard copy is concurrently sent by internationally commercially recognized
overnight delivery service), internationally commercially recognized overnight
delivery service (such as Federal Express or D.H.L.) or courier. Notice shall
be deemed served upon personal delivery or upon actual receipt. Any party may
change the address to which notices are to be delivered by written notice to the
other parties served as provided in this Section 10.1.
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10.2 ENTIRE AGREEMENT. This Agreement, together with the Exhibits attached
hereto and hereby incorporated herein by reference, constitutes the complete,
final and exclusive understanding and agreement between the parties with respect
to the transactions contemplated, and supersedes any and all prior or
contemporaneous oral or written representation, understanding, agreement or
communication between the parties concerning the subject matter hereof.
10.3 AMENDMENTS. All amendments or modifications of this Agreement shall
be binding upon the parties so long as the same shall be in writing and executed
by each of the parties hereto.
10.4 WAIVER. No waiver of any provision of this Agreement or any rights or
obligations of any party hereunder shall be effective, except pursuant to a
written instrument signed by the party waiving compliance, and any such waiver
shall be effective only in the specific instance and for the specific purpose
stated in such writing.
10.5 FORCE MAJEURE. No party shall be deemed in default hereunder, nor
shall it hold the other parties responsible for, any cessation, interruption or
delay in the performance of its obligations hereunder due to causes beyond its
reasonable control including, but not limited to: earthquake, flood, fire, storm
or other natural disaster, act of God, labor controversy or threat thereof,
civil disturbance or commotion, disruption of the public markets, war or armed
conflict (whether or not officially declared) or the inability to obtain
sufficient material, supplies, labor, transportation, telecommunications, power
or other essential commodity or service required in the conduct of its business,
any change in or the adoption of any law, ordinance, rule, regulation, order,
judgment or decree (each a "Force Majeure Event") provided that the party
relying upon this Section 10.5: (a) shall have given the other parties written
notice thereof promptly and, in any event, within five (5) days of discovery
thereof and (b) shall take all steps reasonably necessary under the
circumstances to mitigate the effects of the force majeure upon which such
notice is based.
10.6 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement is intended
or shall be construed to give any person, other than the parties hereto, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
10.7 ASSIGNMENT. Neither party shall directly or indirectly assign this
Agreement to a third party without the prior written consent of the other party,
which consent shall not be unreasonably withheld.
10.8 CONSTRUCTION. This Agreement shall be fairly interpreted and
construed in accordance with its terms and without strict interpretation or
construction in favor of or against any party. Each party has had the
opportunity to consult with counsel in the negotiation of this Agreement.
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10.9 CAPTIONS AND HEADINGS. The section and subsection headings and
captions appearing in this Agreement are inserted only as a matter of
convenience and shall not be given any legal effect.
10.10 SEVERABILITY. If any restriction, covenant or provision of this
Agreement shall be adjudged by a court of competent jurisdiction to be void as
going beyond what is reasonable in all the circumstances for the protection of
the interests of the party seeking to enforce such restriction, covenant or
provision, such restriction, covenant or provision shall apply with such
modifications as may be necessary to make it valid and effective. In the event
that any provision of this Agreement should be found by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
shall not in any way be affected or impaired thereby.
10.11 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of New York. Any action arising out of or relating to this Agreement
shall be filed only in the courts of the State of California for the County of
Los Angeles, or the United States District Court for the Central District of
California. The parties hereby consent and submit to the personal jurisdiction
of such courts for the purposes of litigating any such action.
10.12 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the duly authorized representatives of each party have
executed this Agreement as of the day and year first written above.
ESPN ENTERPRISES, INC.. STARWAVE CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxx
------------------------- ---------------------
Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxx
Title: Vice President Title: Sr. Vice President
ESPN/STARWAVE PARTNERS
By its General Partners
ESPN ONLINE INVESTMENTS, INC. STARWAVE VENTURES
By: /s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------- -------------------------
Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President Title: Vice President
EXECUTED SOLELY WITH RESPECT
TO THE PROVISIONS OF
SECTIONS 3.6, 5.2, 6.2 AND 10.7
DISNEY ENTERPRISES, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Title: Sr. Vice President
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