License Agreement
This License Agreement is made and entered into as of the 8th day of March, 2000
(the "Effective Date") by and between XxXxxx.xxx, Inc. ("Company"), a Delaware
corporation located at 00000 Xxxx Xxx Xxxxxxx Xxxxx, Xxxxxxxx 000, Xxxxxxxxxxxx,
XX, 00000 and CNN Interactive, a division of Cable News Network LP, LLP ("CNN"),
a Delaware limited partnership, located at Xxx XXX Xxxxxx, Xxxxxxx, XX, 00000.
1. Overview
During the Term (as defined below), the parties will establish links
between Company's Internet portal site located at xxxx://xxx.xxxxxx.xxx (the
"Company Internet Site") and a CNN Internet site currently known as "CNN
Interactive" (the "CNN Site"). In connection with such links, CNN will provide
data, resident on the Company servers, that will be sponsored exclusively by
Company and will contain CNN Logos (as defined below). Such data will contain
CNN news headlines news summaries, full stories and links to the CNN Site. The
co-branded news content provided under this Agreement will be promoted to buyers
of Company's GEOS-based sub-$500 computer (including 56K modem and limited
applications software) known as "GlobalPC" and distributed via mass-market
general retail outlets (the "Device"). CNN will allow Company to use the CNN
name as further provided in this Agreement and branding to conduct such
promotion subject to prior approval of CNN.
2. Term
The term of the Agreement will commence from the Effective Date and, unless
earlier terminated pursuant to the terms of this Agreement, will continue for a
period the earlier of one year from the launch of the Device or until June 15,
2001 (the "Term"). CNN will commence providing CNN content by no later than
April 17, 2000.
3. Creation and Display of CNN Content
3.1 CNN will create and/or otherwise provide the content set forth on
Exhibit A attached hereto and regularly update all content and other materials
provided by CNN to Company ("CNN Content"). CNN hereby grants Company a limited
non-exclusive license to use the CNN Content in accordance with the terms set
forth herein. The Company's news pages will be designed by Company with CNN's
design input, and will display the CNN Logo. Company also will provide one (1)
unit of the Device and/or emulation software for CNN's use in connection with
the development and testing of the CNN Content. Company covenants to maintain
the most updated CNN Content on the Company Internet Site at all times.
3.2 The CNN Content will correspond to the sections of the CNN Site
identified on Exhibit A hereto and incorporated herein. Each full story on the
Company Internet Site will include a link to CNN.
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3.3 Company must secure, maintain and pay for all Company's equipment
tariffs, telecommunications service and any related or other charges necessary
for its reception and distribution of the CNN Content. Company shall be solely
responsible for maintaining all equipment and access necessary to access and/or
receive the CNN Content. In addition, Company shall also be responsible for
obtaining and complying with any necessary authorizations, licenses or other
permissions, if any, that may be required of Company by any appropriate
authority.
3.4 CNN shall publish the CNN Content in a mutually agreed upon technical
format and updated in a manner designed to provide timely news and information
on a consistent basis to reflect breaking news. CNN Content will be displayed
and hosted by the Company servers except where technically infeasible (e.g.,
stock quotes), and CNN will maintain and exercise absolute editorial control and
discretion over the substance and selection of all CNN Content and all other
content of any type provided by CNN as part of this Agreement. CNN shall have
the right in its good faith sole discretion, to withdraw any CNN Content for any
legal or business reason it deems reasonably necessary. At CNN's request Company
shall immediately take action to remove the withdrawn CNN Content. Company shall
have no right, nor authorize any entity, to transmit, modify, alter, edit,
sublicense or otherwise use the CNN Content, provided to it hereunder. Company
shall only have the right to archive any CNN Content for nor more than fourteen
(14) days. Company shall restrict access to any CNN Content on the Company
Internet Site to users who access the CNN Content via the Device. Company may
allow users who are not accessing the Company's Site via the Device to view CNN
news and information of the type included in the CNN Content with links directly
to the CNN Site.
3.5 Company acknowledges that the license to use the CNN Content is
non-exclusive and may appear on third-party sites. Company further acknowledges
that CNN will be the exclusive business, sports and general news provider for
Company, and Company accordingly will not display or promote any content
created, distributed or provided by any of the entities listed on Exhibit B
attached hereto and made part hereof except that Company may provide almanac
content from any other provider to supplement the CNN Content as long as such
content does not reside on the same pages as CNN Content.
3.6 Subject to the foregoing, the CNN Content will not contain advertising
placements, and neither party will sell any advertising for placement on any of
the CNN Content. Company will not (i) sell any advertising or other placements
targeted for display against any of the CNN Content, or the CNN Site, and (ii)
place or permit placement of any material of any kind on, in, surrounding or
adjacent the CNN Content except that Company can display advertising and other
content on pages that contain links to the CNN Content and on search pages that
return CNN Content.
4. Logo Licenses
4.1 CNN hereby grants Company a limited non-exclusive license to use the
name of CNN and the CNN Interactive service xxxx (collectively, the "CNN Logo")
during and in accordance with the terms hereof. Such license is granted solely
for the purpose of permitting Company to use the CNN Logo (i) on the Company
Internet Site as a hypertext link/navigational button to the CNN site from the
home pages of the Company Internet Site (the "CNN Internet Link")
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as further described in Section 4.1(a) below and (ii) in connection with
approved promotional uses as further described in Sections 4.1(b) and (c) below.
Company must obtain the prior approval of CNN for each and every Company use and
reproduction of the CNN Logo, except that Company need not obtain prior approval
to reprint, rebroadcast or retransmit during the Term any material that is
identical to previously-approved material and further except as set forth
herein. Company will not use or reproduce the CNN Logo for any purposes not
expressly set forth herein, and Company expressly acknowledges that it may not
use the CNN Logo to promote the Company Internet Site or any Company products or
services other than the Device, except as set forth herein.
(a) The CNN Internet Link may not be used in any manner
to provide viewers access to the CNN Site via any
caching (except for performance reasons), framing,
layering or other techniques that cause intermediate
copying of the CNN Site (or elements thereof) or
display of the CNN Site or portions thereof in any
manner unintended by CNN, including, without
limitation, display of the CNN Site with any
materials posted by Company or any party other than
CNN.
(b) Solely to promote the availability of the news
content provided by CNN under this Agreement, Company
may use the CNN Logo on and in Company product
packaging and instruction manuals and materials which
shall be submitted to CNN for approval prior to use;
television, radio and print advertising; in-store
display material; and promotional literature for the
Device.
4.2 Company hereby grants CNN a limited non-exclusive license to use the
Company service xxxx (the "Company Logo") during and in accordance with the
terms hereof. Such license is granted solely (i) for the purpose of displaying
the Company Logo on the CNN Content along with the CNN Logo, and (ii) placing
the Company Logo on the CNN Content (at CNN's discretion) as a Company Internet
Link. CNN will not be allowed to use or reproduce the Company Logo for any other
purpose, including the promotion of CNN's on-line services or the CNN Site,
without the prior written approval of Company.
4.3 Each party's use of the other's Logo will be limited to the style and
format of such Logos as provided by such party. Each party hereby grants the
other the right to download the other's Logo from its Internet Site for use as
set forth herein.
4.4 Company represents, warrants, and agrees that the context in which the
CNN Logo is used will not be derogatory to or critical of the news or
entertainment industries or of CNN, its parent, subsidiary or affiliated
companies, or any of their respective officers, directors, agents, or employees,
or of any program produced or distributed by CNN or its parent, subsidiary or
affiliated companies, or any of their respective officers, directors, agents, or
employees.
4.5 Each party hereto warrants that it will maintain no less than the level
of editorial and technical standards shown in the representative samples of such
party's Internet Site provided to the
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other in connection with this Agreement. Each party hereto agrees to use such
Logos only in the form provided by the other party and subject to the conditions
provided herein.
4.6 Neither party will in any way suggest or imply through use of the other
party's Logo or otherwise that its Internet Site or on-line service is directly
affiliated with, endorsed by or created in association with the other party.
4.7 Each party has paid and/or will pay any and all costs which it has
incurred or will incur as a result of its usage or downloading of the other
party's Logo and any other costs of performance hereunder and will not hold the
other party responsible for any portion thereof.
4.8 CNN acknowledges that the Company Logo is owned by Company and Company
acknowledges that the CNN Logo is owned by CNN. Neither party will do anything
inconsistent with such ownership and all uses of the Logos will inure to the
benefit of and are on behalf of the respective owner of the Logo. Nothing in
this Agreement grants either party any right, title or interest in the other
party's Logo other than the limited license set forth herein. Each party further
agrees that it will not attack or assist others in attacking the title of the
Logo of the other party.
4.9 Other than as expressly authorized herein, each party agrees not to use
any other trademark or service xxxx in combination with the other party's Logo
without the prior written approval of such party.
4.10 Each party agrees to notify the other party of any unauthorized use of
such party's Logo promptly as it comes to the notifying party's attention. Each
party will have the sole right and discretion to bring infringement or other
proceedings involving its own Logo.
5. Fees
Company will pay to CNN a total fee of Eight Hundred Seventy-Five Thousand
Dollars ($875,000.00) for the Term (the "Fee"), payable as follows: Eighty Seven
Thousand Five Hundred Dollars ($87,500.00) upon execution of this Agreement
(which has been paid as of the date hereof) and the balance in quarterly
payments of One Hundred Ninety Six Thousand Eight Hundred Seventy Five Dollars
($196,875.00) beginning on April 15, 2000 and each payment thereafter shall be
due and payable ten (10) days following the end of the following three month
period. In the event the Agreement is terminated prior to the end of the Term,
the fee shall be reduced on a pro-rata basis for the number of days from the
date of discontinuation by the Company of the use of the CNN Logo and CNN
Content to the expiration of the Term.
6. General Terms
6.1 Limitation of Liability. EXCEPT FOR THIRD PARTY CLAIMS FOR WHICH A
PARTY HERETO IS INDEMNIFIED UNDER SECTION 6.13, UNDER NO CIRCUMSTANCES WILL
EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL OR EXEMPLARY DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES) SUCH AS, BUT NOT LIMITED TO, LOSS OF
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REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE
OTHER FOR ANY CLAIM ARISING OUT OF ANY DOWNLOADING OR OTHER USE OF ANY OF THE
CONTENT BY USERS OF EITHER THE SPONSOR INTERNET SITE OR THE CNN INTERNET SITE.
6.2 Disclaimer. NEITHER PARTY HERETO MAKES, AND EACH PARTY HERETO
SPECIFICALLY DISCLAIMS AND AGREES THAT THE OTHER HAS NOT MADE ANY,
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE OPERATION OF
SUCH PARTY'S INTERNET SITE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF
DEALING OR COURSE OF PERFORMANCE WITHOUT LIMITING THE FOREGOING, EACH PARTY
ACKNOWLEDGES THAT THE OTHER'S SITE IS OPERATED ON AN "AS IS" BASIS, AND NEITHER
PARTY MAKES ANY WARRANTY THAT ITS SITE WILL BE ERROR-FREE OR THAT ACCESS THERETO
WILL BE UNITERUPTED.
6.3 Termination of Agreement. This Agreement will expire on the date set
forth in Section 1 hereof. In addition, the non-breaching party may terminate
this Agreement with written notice to the breaching party in the event that a
material breach of a material term of this Agreement has not been cured by the
breaching party within thirty (30) days of written notice thereof. In addition,
CNN may terminate this Agreement (i) on thirty (30) days' notice in the event
that any third-party content provider to CNN objects to any activity of CNN
arising out of or related to this Agreement or (ii) upon twenty-four (24) hours
notice in the event that CNN determines in its sole discretion exercised in good
faith that any pages CNN Content, as viewed in connection with the Device, do
not meet the reasonable standards of CNN; provided, that, CNN shall give Company
notice (via fax, e-mail or phone) of the concerns surrounding the CNN Content on
the Device and Company shall have a period of three (3) business days to cure
such concerns.
Within sixty (60) days following any termination or expiration of this
Agreement, except for termination pursuant to Section 6.3(i) or (ii), in which
case upon termination of this Agreement, the Company will discontinue
immediately all use of the CNN Logo and delete or destroy all CNN materials in
any medium or format that are within Company's possession, custody or control.
Upon any termination or expiration of this Agreement, CNN will discontinue
immediately all use of the Company Logo and delete or destroy Company materials
in any medium or format that are within CNN's possession, custody or control
except for packing or instruction materials which are in the Company's inventory
at the time of such termination.
6.4 Amendments to this Agreement. No amendment to or modification of this
Agreement will be binding upon any party unless such amendment or modification
is reduced to writing, dated and executed by both parties to this Agreement.
6.5 Assignment. Neither this Agreement, any right or license granted
hereunder or any portion thereof will be assigned or transferred to any third
party, by operation of law or otherwise, without the prior written consent of
the other party; provided however, either party may assign this
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Agreement without the prior written consent of the other to any person, firm or
entity controlled by, controlling or under common control with such party or in
connection with the sale of substantially all of the assigning party's assets or
a merger, consolidation or the like (a "Transaction") where the assigning party
is not the surviving entity; provided, that, if Company enters into a
Transaction with an entity CNN reasonably deems a competitor CNN shall have the
right to terminate the Agreement upon thirty (30) days prior notice.
6.6 Confidentiality. Each party agrees that this Agreement, its terms and
all information and items shared hereunder, tangible and intangible, will remain
confidential and will not be disclosed to any third party for any reason without
the prior written consent of the other party, unless such disclosure is required
by or made pursuant to the order of a court of competent jurisdiction or a
government agency or otherwise pursuant to law, rule or regulation and except
further as provided in this Agreement.
6.7 Waiver and Remedies. The failure of either party at any time to require
performance by the other party will in no way affect the right of either party
thereafter to enforce the same provision, nor will the waiver of either party of
any breach of any provision herein be held or taken to be a waiver of succeeding
breach or as a waiver of the provision itself. No waiver will be effective
unless it is in writing and is signed by both of the parties hereto. All
remedies, rights, undertakings, obligations and agreements contained in this
Agreement will be cumulative and none of them will be in limitation of any other
remedy, right, undertaking, obligation or agreement of either party.
6.8 Notices. All notices and statements required or permitted by this
Agreement will be deemed to have been given when delivered in person or five (5)
days after having been deposited with the United States Post Office, Certified
Mail, return receipt requested, postage prepaid and properly addressed. Any
notices sent to Company will be addressed to Company at the address first set
forth above, and any notices sent to CNN will be sent to CNN interactive, Xxx
XXX Xxxxxx, X.X. Xxx 000000, Xxxxxxx, Xxxxxxx 00000-0000, attention: Vice
President, Business Development with a simultaneous copy to CNN, Xxx XXX Xxxxxx,
X.X. Xxx 000000, Xxxxxxx, Xxxxxxx 00000-0000, attention: General Counsel.
6.9 Severability. If any provision in this Agreement is declared invalid or
unenforceable in any respect, the parties agree that such invalidity or
unenforceability will not affect the validity of the remaining provisions of
this Agreement, and further agree to substitute for the invalid provision a
valid provision which approximates the intent and economic effect of the invalid
provision as closely as possible.
6.10 Descriptive Headings. The descriptive headings of the several sections
of this Agreement are used for convenience only and will not control or affect
the meaning or construction of any of the provisions hereof.
6.11 Governing Law, Venue and Jurisdiction. This Agreement will be governed
by and construed in accordance with the laws of the State of Georgia. The
parties agree that the exclusive
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jurisdiction and venue for any action relating to this Agreement will be a
federal or state court in Atlanta, Georgia and the parties hereby consent to
such jurisdiction and venue.
6.12 Force Majeure; Delay. Neither party hereto will be responsible for
delays in performance caused by acts of God or governmental authority, strikes
or labor disputes, satellite failure or malfunction, electrical outage,
equipment failure, fires or other loss of facilities, or any other cause,
whether similar or dissimilar, beyond the reasonable control of that party;
provided, however, that in the event of such delay for ten (10) or more
consecutive days or thirty (30) or more days within a single sixty (60) day
period, then the other party hereto will be entitled to terminate this Agreement
without further liability or obligation.
6.13 Indemnification. Each of the parties hereto will indemnify, defend and
hold the other party hereto, its parent, subsidiaries, affiliates, predecessors,
successors and assigns and their respective agents, officers, directors and
employees harmless from and against any and all losses, costs, claims, damages
(including attorney's fees and expenses and allocable fees of in-house counsel),
liability, demands or expenses, which may arise out of or derive in any way from
(i) any failure of such party to maintain all rights and licenses necessary in
connection with the license of such party's Logo hereunder, (ii) any
infringement of any copyright, trademark, patent, music synchronization rights,
music performing rights, master music recording rights, still photography, film
and videotape footage rights, or (iii) any claim or defamation, invasion of the
right or privacy or publicity or infringement of any other right of any kind of
any third party.
6.14 Reservation of Rights. Each of the parties hereby reserves all rights
in and to its respective Logos not specifically granted herein. Each party will,
with respect to its respective Logo, at all times, anywhere in the world, and
whether or not in competition with the other party, have the right to use and/or
authorize the use of their respective Logo, or any portion thereof, in any way
such party may desire which is not inconsistent with the terms hereof. Except
for Company's rights in the Company Logo, any and all rights in and to the CNN
Site, and/or the CNN Content, not expressly granted to Company herein are hereby
expressly reserved by CNN and may be exercised and exploited freely by CNN in
any manner it deems appropriate in any medium now known or hereafter known. All
copyrights and other rights in and to the CNN Site, and/or CNN Content, and all
derivative works thereof will remain with CNN and Company will not acquire,
obtain or claim any copyright or other proprietary interest in or to any such
materials by reason of this Agreement or any license granted herein;
accordingly, Company agrees to and hereby does assign and/or transfer to CNN
without payment any rights in or to any such materials or any derivative works
thereof it may inadvertently or otherwise acquire in connection herewith. Except
for the CNN Logo as displayed thereon, the Company Internet Site and all rights
therein are proprietary to Company and CNN will not be deemed to have acquired
any copyright or other ownership interest in the Company Internet Site.
6.15 Publicity. CNN will work with Company on a press release to announce
the relationship established by this Agreement. The timing and content of such
release will be as mutually agreed upon by the parties. Except as otherwise
provided in this Agreement, neither party will undertake any marketing or
promotional effort or make any public statement, press release or
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other announcement relating or referring to their relationship or the terms of
this Agreement without the prior written approval of the other, which shall not
unreasonably be withheld.
6.16 No Joint Venture. Nothing contained herein will create or suggest any
affiliation, association, partnership, agency or joint venture between the
parties. Neither party hereto will represent itself as the associate, partner,
agent or joint venturer of the other in any way whatsoever.
6.17 No Other Agreements. This Agreement, including the Exhibits hereto,
contains the entire understanding and agreement of the parties with respect to
the subject matter hereof, and supercedes any prior written or oral agreements
between them with respect thereto. Except as so set forth, there are no
representations, agreements, arrangements or understandings, written or oral
between the parties, with respect to the subject matter of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal effective as of the day and year above written.
XxXxxx.xxx, Inc. CNN Interactive, a division of
Cable News Network LP, LLP
Signature: /s/ Xxxx Theale Signature: /s/ Xxxxx X. Xxxxx
---------------------- ------------------
Printed Printed
Name: Xxxx Theale Name: Xxxxx X. Xxxxx
--------------------------- ------------------
Title: President Title: SVP
-------------------------- ------------------
Date: 3/9/00 Date: 3/8/00
--------------------------- ------------------
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Exhibit A
CNN Content/Sections and Features
CNN will deliver content substantially in the form set forth below. Such content
will be updated every twenty minutes (with the exception of weather which will
be updated every hour).
o US News: CNN will deliver 3-5 headlines, summaries, full stories/link
and photos (where available).
o World News: CNN will deliver 3-5 headlines, summaries, full
stories/link and photos (where available).
o Business from CNNfn: CNN will deliver 3-5 headlines, summaries, full
stories/link and photos (where available); delayed market indices for
NYSE AMEX and NASDAQ; CNN shall make the CNN stock quote database
(resident on CNN servers) accessible upon electronic query by Company.
o Politics from AllPolitics: CNN will deliver 3-5 headlines, summaries,
full stories/link and photos (where available).
o Science and Technology: CNN will deliver 3-5 headlines, summaries, full
stories/link and photos (where available).
o Sports from CNN/SI: CNN will deliver 3-5 headlines, summaries, full
stories/link and photos (where available); scoreboards to include all
major U.S. sports and major worldwide sporting events.
o Entertainment: CNN will deliver 3-5 headlines, summaries, full
stories/link and photos (where available); time zone links to local
television programming schedules; and a zip code entry field that
likewise links to local television programming schedules.
In addition, CNN will provide:
o Weather: Thumbnail images of national (North America) weather maps,
each of which will link to the corresponding full-size map; and a zip
code entry field that links to local weather forecast data.
o Almanac: Features known as Quote of the Day, Birthdays and News
Related Links of the Day.
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