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Exhibit 10.11
DATABASE AND SOFTWARE LICENSE AGREEMENT
AGREEMENT, entered into effective as of July 15, 1999, by and between
MTV Networks ("Licensee"), a division of Viacom International Inc., a Delaware
corporation ("Viacom") and MTVN Online L.P., a Delaware limited partnership (the
"Licensor").
WHEREAS, the parties hereto have entered into an Organization Agreement
of even date herewith with Liberty Media Corporation ("Liberty"), TCI Music,
Inc. ("TCI Music"), MTVN Online Partner I LLC, MTVN Online, Inc., Imagine Radio,
Inc. ("Imagine"), SonicNet, Inc. ("SonicNet"), The Box Worldwide, Inc. ("Box"),
and VJN LPTV Corp. (the "Organization Agreement"); and
WHEREAS, in connection with the Organization Agreement the parties
desire that the Licensor provide a database and related materials to Licensee
upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the meanings specified below:
"Affiliate" shall have the meaning set forth in the Organization
Agreement.
"Business" shall have the meaning set forth in the Partnership
Agreement.
"Business Day" shall have the meaning set forth in the Partnership
Agreement.
"Control" shall have the meaning set forth in the Organization
Agreement.
"Partnership Agreement" shall mean the Agreement of Limited Partnership
of even date herewith among VLLC, Imagine, SonicNet and Box.
"Person" shall have the meaning set forth in the Organization
Agreement.
"Reorganization" shall have the meaning set forth in the Parent
Agreement and Guaranty of even date herewith among TCI Music, Licensee, Liberty,
Box, SonicNet and Licensor.
2. Grant of License.
(a) Grant. Subject to the terms and conditions of this Agreement,
Licensor hereby grants to Licensee a fully-paid, royalty-free,
non-exclusive right and license (the "License") for the duration of the
Term (as hereinafter defined) to use the following
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databases (the "Databases"), software and informational materials,
including without limitation any additions, revisions and modifications
made thereto by Licensor and Licensee during the Term (collectively,
the "Licensed Materials"):
(i) Licensor's music database, including all information
collected on the music industry, including without limitation,
titles, artists, composers, concerts, record labels, etc.
(ii) Licensor's digitized music database; and
(iii) Licensor's customer database and related customer data
and demographic information compiled by Licensor; provided,
however, that the grant hereof shall not include any such
customer data to the extent such grant would violate the terms
of any consent granted by the applicable end user, or any
applicable privacy regulations; and provided further that
Licensee shall not be entitled to sell, barter, or otherwise
transfer to a third party (other than Affiliates of Licensee)
such customer information.
The Licensed Materials shall not include any materials to the extent
that inclusion thereof would violate any license agreement from a
third-party hereafter entered into by Licensor; provided, however, that
Licensor shall use its commercially reasonable best efforts to avoid
any such restriction in connection with data or software that it
acquires.
(b) Permitted Use. The Licensed Materials may only be used by Licensee
for purposes of conducting Licensee's business, and Licensee shall have
the right in its sole discretion to sublicense the Licensed Materials
to any person who at the time of the grant of such sublicense is an
Affiliate of Licensee, for use by such sublicensee in connection with
the operation of their respective businesses. Nothing in the License is
intended to permit Licensee or its Affiliates to use the Licensed
Materials for the operation of a business in competition with the
Business as of the date of this Agreement.
(c) Delivery. The Licensed Materials shall be made available to
Licensee at such times and in such format as Licensee may reasonably
request. Licensor shall use its commercially reasonable best efforts to
keep the Licensed Materials current and accurate in all material
respects during the Term. Licensee shall have the right to make
changes, modifications, additions and deletions to the Licensed
Materials subject to any third party license rights. If Licensee makes
any additions, revisions or modifications to the Licensed Materials, it
shall upon request by Licensor, make such additions, revisions or
modifications available to Licensor for its use mutatis mutandis in
accordance with the same terms and conditions as are provided herein.
(d) Third Party Requirements. To the extent any of the Licensed
Materials are provided to Licensor through any agreement with a third
party, Licensor shall furnish Licensee with a copy of such agreement
and Licensee agrees to comply with the terms thereof. Licensee further
agrees to comply with any reasonable restrictions on the use of the
Licensed Materials established by Licensor.
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3. Term; Termination.
(a) Term. The Term of this Agreement shall commence on the date hereof,
and unless earlier terminated pursuant to subsection (b) hereof,
terminate on the earlier of (i) the fiftieth anniversary of the date
hereof or (ii) the fifth anniversary of the first date that Licensee
and its Affiliates own, in the aggregate, less than twenty-five percent
(25%) of the equity interests in the Partnership.
(b) Termination.
(i) Automatic Termination. This Agreement shall terminate
automatically in the event of any insolvency of Licensee, or
upon the appointment of any receiver, administrator,
liquidator, or trustee to take possession of the properties of
Licensee or upon the winding-up of Licensee, by a Governmental
Entity (as defined in the Organization Agreement).
(ii) Partial Termination. In the event that (i) any of the
Licensed Materials are determined to infringe any third party
owned patent, copyright or other intellectual property right,
or (ii) Licensor reasonably determines that the use or
continued use of any of the Licensed Materials is not legally
permissible, including but not limited to by reason of
conflicts with third party rights in any Database, Licensor
shall have the right to terminate this Agreement as to any
such Licensed Materials to the extent of such determination
upon notice to Licensee.
(iii) Termination for Breach. Licensor shall have the right to
terminate this Agreement, upon thirty days notice to Licensee,
in the event (a) of the breach of any material provision
hereof by Licensee which has remained uncured for thirty (30)
days following notice of such breach from Licensor or (b) the
Business is completely discontinued.
(c) Effect of Termination.
(i) Immediate Termination. Upon expiration or termination of
this Agreement for any reason, Licensee's right to use the
Databases will terminate immediately, and this Agreement shall
cease except that all obligations of the parties under this
Agreement which accrue or are due with respect to periods
prior to, or as of, such termination or expiration, and all
obligations which expressly survive the expiration or
termination of this Agreement shall continue in full force and
effect subsequent to and notwithstanding the expiration or
termination of this Agreement.
(ii) Use of Licensed Materials. Upon expiration or termination
of this Agreement for any reason, Licensee shall discontinue
immediately all use of the Licensed Materials, cooperate with
Licensor and any of its appointed agents to inform the
appropriate authorities of such termination and destroy all
materials that contain, refer to or relate to the Licensed
Materials, whether provided to
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Licensee by Licensor or created or developed by Licensee or
by any third party. All rights in the Licensed Materials shall
remain the property of Licensor upon expiration or
termination.
4. Non-exclusivity. Nothing in this Agreement is intended to prevent Licensor
from entering into license agreements with others with respect to all or any
part of the Licensed Materials, consistent with subsection 2 (a) above.
5. Limited Warranty. Licensor hereby represents and warrants to Licensee as to
Licensed Materials created after the date hereof ("New Licensed Materials") that
the New Licensed Materials as furnished to Licensee, shall be in the same form
and content as used by Licensor in the Business, and that to its knowledge: (a)
it owns or otherwise has the right to use the New Licensed Materials; (b) it has
the right and power to grant the License to Licensee as provided herein; (c) the
grant of the License to Licensee as provided herein does not require the consent
of any third party; and (d) the New Licensed Materials and their use as
contemplated by this Agreement do not infringe or violate any patent, copyright,
other intellectual property right, right of publicity, right of privacy or
contract right of any third party. EXCEPT AS EXPRESSLY PROVIDED IN THE FOREGOING
SENTENCE, LICENSOR MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE LICENSED MATERIALS. LICENSOR
MAKES NO REPRESENTATIONS AS TO THE QUANTITY OF NEW LICENSE MATERIALS THAT WILL
BE GENERATED OR AS TO THE FUNCTIONALITY, ACCURACY, OR COMMERCIAL VALUE (IF ANY)
THEREOF. LICENSOR HEREBY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL LICENSOR BE LIABLE TO
LICENSEE HEREUNDER FOR ANY CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES.
6. Ownership of Licensed Materials. All Licensed Materials, including any
copies, translations or compilations of all or any part thereof, and any
revisions, modifications or additions thereto made by Licensor or Licensee, are
and shall remain the sole exclusive property of Licensor, except for any
revisions, modifications or additions thereto which were made solely by
Licensee, which shall be owned by Licensee, but with respect to which Licensor
shall hereby be granted a non-exclusive, non-transferable license to use for the
Term of this Agreement mutatis mutandis in accordance with the terms and
conditions set forth herein. Licensee shall not seek, apply for, or assert
rights in, registrations for patents, copyrights, or the like covering the New
Licensed Materials.
7. Miscellaneous.
(a) Headings. The headings of the sections and other subdivisions of
this Agreement are for convenience of reference only and shall not
modify, define or limit any of the terms or provisions of this
Agreement.
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(b) Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York,
without giving effect to any of its conflicts of law provisions.
(c) Severability. If any provision of this Agreement shall be held to
be illegal, invalid or unenforceable, that provision will be enforced
to the maximum extent permissible so as to effect the intent of the
parties and the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby. If
necessary to effect the intent of the parties, the parties will
negotiate in good faith to amend this Agreement to replace the
unenforceable language with enforceable language which as closely as
possible reflects such intent.
(d) Amendments. This Agreement may be modified or amended only by a
written amendment signed by each party hereto.
(e) Counterparts. This Agreement may be executed in one or more
counterparts (and all signatures need not be on any one such
counterpart), with all such counterparts together constituting one and
the same instrument.
(f) Entire Agreement. This Agreement contains the entire agreement of
the parties with respect to the subject matter hereof and supersedes
any and all prior agreement and understandings, whether written or
oral, with respect to the subject matter hereof, including the
Memorandum of Understanding dated May 19, 1999 among Viacom, Liberty,
and TCI Music.
(g) No Presumption. This Agreement shall be construed without regard to
any presumption or rule requiring construction or interpretation
against the party drafting or causing any instrument to be drafted.
(h) Consents and Approvals; Waivers; Remedies. All consents and
approvals which may be given under this Agreement shall, as a condition
of their effectiveness, be in writing. The granting by a party hereto
of any consent to or approval of any act requiring consent or approval
under the terms of this Agreement, or the failure on the part of a
party to object to any such action taken without the required consent
or approval, shall not be deemed a waiver by the party whose consent
was required of its right to require such consent or approval for any
other act. The observance of any provision of this Agreement may be
waived (either generally or in a particular instance and either
retroactively or prospectively) by the party or parties entitled to
enforce such term, but any such waiver shall be effective only if in a
writing signed by the party or parties against which such waiver is to
be asserted and only in the specific instance and for the specific
purpose for which given. Except as otherwise provided herein, no
failure or delay of any party in exercising any power or right under
this Agreement shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such right or power, preclude any
other or further exercise thereof or the exercise of any other right or
power.
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(i) Assignment. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any party hereto (whether by operation of law or
otherwise) without the prior written consent of the other party hereto.
In connection with the Reorganization, the Licensor shall assign all of
its rights and obligations hereunder to the corporate successor to all
or substantially all of the Licensor's assets pursuant to an assignment
and assumption agreement in form and substance reasonably satisfactory
to Licensee and such corporate successor shall accept and assume the
same. Upon such assignment and assumption, the Licensor shall be
released from all its obligations hereunder.
(j) Limitation on Rights of Others. Nothing in this Agreement, whether
express or implied, shall be construed to give any Person (other than
the parties hereto and their permitted successors and assigns) any
legal or equitable right, remedy or claim under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
None of the provisions of this Agreement shall be for the benefit of or
enforceable by any third party.
(k) Notices. Except as expressly provided herein, notices and other
communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed (certified or
registered mail, postage prepaid, return receipt requested) or sent by
facsimile copier of the sending party, as follows:
If to Licensee:
MTV Networks
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
Viacom International Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: General Counsel
If to the Licensor:
MTVN Online, L.P.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Telecopier No.:▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
or to such other address or attention of such other Person as any party
shall advise the other parties in writing. All notices and other
communications given to a party in accordance with the provisions of
this Agreement shall be deemed to have been given (i) three Business
Days after the same are sent by certified or registered mail, postage
prepaid, return receipt requested, (ii) when delivered by hand or
transmitted by fax (confirmation received) unless delivered on a day
which is not a Business Day or after 5:00 p.m., local time, at the
place of receipt, in which case such notice shall be deemed to have
been given on the next succeeding Business Day or (iii) one Business
Day after the same are sent by a reliable overnight courier service,
with acknowledgment of receipt.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first set forth above.
MTV NETWORKS, a division of
Viacom International, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. Vice President, General Counsel
and Assistant Secretary
MTVN ONLINE L.P.
By: MTVN Online Partner I LLC, its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. Vice President, General Counsel and
Assistant Secretary