Exhibit 10.4
@HOME NETWORK/DATAMARK HOLDING, INC.
CONTENT LICENSE AND DISTRIBUTION AGREEMENT
This Content License and Distribution Agreement (the "Agreement") is made
as Of July 10, 1998 (the "Effective Date") by and between At Home Corporation, a
Delaware corporation with principal offices at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ ("@Home"), and DataMark Holding, Inc. d.b.a. Digital Courier Technologies,
Inc., a Delaware corporation with principal offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ by and through its wholly-owned subsidiary,
WeatherLabs, Inc. ("DCTI").
In consideration of the representations, warranties and covenants
contained herein, and other good and valuable consideration, the parties agree
to be bound by the terms and conditions contained in this Agreement.
1. Definitions.
a) "@Home Service" means @Home's International subscription broadband
service offering.
b) "Above the Fold" means situated within that portion of a page that
is designed to be visible on a standard computer screen with a
resolution of 800 pixels by 600 pixels without requiring the user to
scroll horizontally or vertically through the page.
c) "Channel Home Page" means the first page or top level page accessed
by a subscriber when entering a given channel on The @Home Service
(e.g. "News" or "Finance") using a persistent navigation button with
the name of the channel depicted which is directly accessible from
anywhere within the @Home Service.
d) "Co-branded Weather@Home" means a customized, optimized and mirrored
version of Weather@Home that is located within WeatherLabs Online
which will contain a comprehensive offering of the products and
services that are substantially similar to those offered on
Weather@Home.
e) "Contract Year" means a period beginning on the Effective Date or
any anniversary thereof, and ending one year later.
f) "Cover Feature" means the portion of a Channel Home Page that is
produced daily by the @Home editorial staff.
g) "DCTI Competitors" means Accuweather, The Weather Channel,
WeatherNews Inc., Weather Services Corporation, Intellicast,
National Weather Center, and USA Today.
h) "Distribution Affiliates" means at any given time, @Home's
then-current domestic and International distribution affiliates who
offer the @Home Service. As of the Effective Date, the Distribution
Affiliates are: Tele-Communications Inc., Cablevision Systems Corp.,
Comcast Corporation, ▇▇▇ Communications, Bresnan Communications
Company, Insight Communications, ▇▇▇▇▇ Intercable, Garden State
Cable, Cogeco Cable, ▇▇▇▇▇▇▇ Communications, InterMedia Partners,
Marcus Cable, Century Communications, Rogers Cablesystems Limited
and ▇▇▇▇ Communications.
i) "Impression" means a single viewing of a page. An Impression is
recorded whether or not the viewer acts on an advertisement located
on that page.
j) "Net Advertising Revenue" means the gross advertising and
sponsorship revenue collected by @Home which is directly
attributable solely to Weather@Home, less third party agency
commissions and seller sales costs to be computed as 20% of the
gross advertising and sponsorship revenue on Weather@Home.
k) "News Channel" means a collection of web pages on the @Home Service
that are grouped together by a persistent, dedicated navigation HTML
button currently labeled "News", which is directly accessible from
anywhere within the @Home Service.
l) "News Home Page" means the first page accessed by a subscriber when
entering the News Channel.
m) "Semiannual Period" means, with respect to any Contract Year, a six
month period starting at either. (i) the beginning of such Contract
Year; or (ii) six months after the beginning of such Contract Year.
n) "WeatherLabs Online" means the World Wide Web site with URL:
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
o) "Weather@Home" means an HTML feature page embedded within the @Home
News Channel, and accessible via a dedicated subchannel HTML button,
containing weather content and customized for placement on the @Home
Service, all as further described herein and in Exhibit A, which
represents a sample Weather@Home Home Page (with navigation
depicted) for illustrative purposes.
p) "Weather Video Wall" means an HTML feature page that may be embedded
within Weather@Home (via an HTML link) or other channels and
applications on the @Home Service, with any additional placements
determined by @Home. The Weather Video Wall will contain one or more
.jpeg or .gif images hyperlinked to multimedia videos with a weather
focus that may be provided by DCTI and/or other content providers.
2. @Home Channel Contribution.
a) Weather@Home Page During the term of this Agreement, the
Weather@Home page will display and provide content, navigation, and
features which are Substantially Similar to those shown in Exhibit
A. For purposes of this Section 2(a), "Substantially Similar" means
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approximately the same relative branding size and prominence for
WeatherLabs content as depicted in Exhibit A. The Weather@Home page
will be free of charge to all @Home subscribers.
b) Persistent Channel Navigation During the term of this Agreement,
@Home will provide one button in the News Channel navigation bar
exclusively dedicated to accessing Weather@Home (the "Weather
Button"). This button will receive persistent placement, will be
accessible from any page within the News Channel area, and will link
to Weather@Home. The button will appear in a position that best
encourages use of the @Home News Channel and will appear Above the
Fold. In addition, @Home may, in its sole discretion, add additional
navigational elements or links across the @Home Service which link
to all or part of Weather@Home.
c) DCTI Exclusive Position. DCTI will receive an Exclusive Position
within the @Home Service. As used in this Agreement this "Exclusive
Position" means:
i) Elimination of Navigation Placement. @Home will not include in
the News Channel any persistent navigation or any persistent
button which links to pages displaying content from DCTI
Competitors.
ii) DCTI Competitor Content With the exception of video, @Home will
not display any content from DCTI Competitors on the
Weather@Home page during the term of this Agreement.
iii) Video from Other Providers. DCTI agrees and acknowledges that
@Home has made commitments to another weather provider for
placement of one or more video weather segments on the
Weather@Home page (as generally depicted on Exhibit A - "Video
Assets"), and may launch a Weather Video Wall on the @Home
Service at some future date during the term of the Agreement.
In no event will @Home's placement of video from a weather
provider other than DCTI on the Weather@Home page or the
integration of a Weather Video Wall from a weather provider
other than DCTI constitute a breach of this Agreement.
d) Editorial Autonomy . Notwithstanding the provisions of Section 2(c)
above, DCTI's Exclusive Position will not preclude @Home from:
i) Permitting @Home editors to place editorial content from DCTI
Competitors (which may include a link back to the content
provider) in any Cover Feature.
a) In those cases where a variety of sources provide similar
information or materially similar coverage of a weather
story that appears in a Cover Feature, and where The
Weather Labs provides similar information or materially
similar coverage of such a weather story, @Home's editors
will give preferential treatment to The Weather Labs
Source within the respective Channel Home Page Cover
Feature.
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b) In those cases where The Weather Labs provides only
tangentially related or less extensive coverage for a
Cover Feature topic than other sources, @Home reserves the
right to link to other information sources within or
outside of the Channel Home Page on a basis which provides
preferential treatment to such other sources. However, in
cases where The Weather Labs has material that
beneficially supplements an @Home weather feature, @Home
will make reasonable efforts to link to that material.
ii) Permitting @Home editors to place their own news and weather
stories within the News Channel or other Channels across the
service.
iii) Permitting the Distribution Affiliates complete autonomy in the
programming of the local area of the @Home Service.
e) DCTI will offer @Home the option to integrate any newly developed
online weather products, content and software tools that DCTI
invents. If a competing weather content provider offers @Home a
weather service or product that WeatherLabs does not offer at that
time, @Home will give DCTI, upon a 60-day written notice, an
opportunity to develop and produce a similar or superior weather
service or product first before using any DCTI Competitor's service
or product.
3. @Home Marketing Contribution.
a) Ad Inventory . At part of its consideration hereunder, @Home will
provide DCTI with Above the Fold advertising at no additional cost
in the amounts set forth herein to promote Weather@Home. The
advertisements will be cross-promoted across the @Home Channels (run
of site) such as "Finance", "News", "Entertainment", and
"Technology", at the following levels: 200,000 Impressions during
the first Contract Year, 450,000 Impressions during the second
Contract Year, and 700,000 Impressions during the third Contract
Year. @Home will also provide creative services to assist the
production of up to four B*Box advertisements per year. This may
include a marketing campaign to build a broader consumer awareness
of Weather@Home and/or Co-Branded Weather@Home.
b) Outbound Marketing. Home will use reasonable efforts with its
Distribution Affiliates to include the WeatherLabs in any
content-related external marketing pieces. These marketing pieces
will, at a minimum, include the WeatherLabs logo but may also
include the WeatherLabs descriptions, screen shots, video of the
@Home Service which includes Weather@Home, etc. Possible marketing
avenues may include, but are not limited to, cable TV spots,
newspaper ads, ▇▇▇▇ stuffers, postcards, door hangers, direct mail,
and take-one brochures.
c) Other Online Marketing . @Home and DCTI will work together to
include the WeatherLabs in other appropriate online mechanisms for
showcasing Weather@Home and other offerings as these mechanisms are
developed.
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d) Usage Data. @Home will provide DCTI with aggregated usage data
concerning access (unique site visitation, total Impressions, etc.)
by visitors to Weather@Home. Usage data reports will be provided
semi-annually and as reasonably requested by DCTI The reports will
be delivered in the format most commonly collected by @Home. All
usage data will be considered Confidential Information of @Home.
Unless @Home is legally or contractually otherwise required, @Home
will not provide to any third party, other than Distribution
Affiliates, usage data specific to WeatherLabs Online or
Weather@Home that has not been aggregated with other data, without
DCTIs prior consent.
4. @Home Network and Distribution Contribution.
a) @Home Distribution. @Home will distribute Weather@Home through all
means by which it distributes its national content to subscribers
using personal computers.
b) Channel Serving and Distribution. @Home. will provide backbone
transport, caching, and network management associated with the
distribution of Weather@Home and any related content to @Home
subscribers over the @Home Network. Without limiting any rights
@Home. may have under applicable laws, DCTI agrees that @Home may
promote (as contemplated by this Agreement), transport (i.e.
transmit and serve), cache on proxy servers, replicate on
replication servers and reproduce on related storage devices
operated by @Home and its Distribution Affiliates, the content
provided by DCTI to @Home for Weather@Home.
c) Connectivity to the @Home Backbone If both parties together
determine that a direct connection is required between @Home and the
WeatherLabs, @Home and DCTI will share equally (50/50) the cost of
direct connectivity from the DCTI Data Server Farm and the nearest
@Home Network backbone access point.
5. DCTI Contribution.
a) Co-branded Weather@Home site. DCTI will create and host the
Co-branded Weather@Home. Except as mutually agreed in writing by the
parties, the Co branded Weather@Home site will contain, at a
minimum, the content described in Section 5b and will not contain
any third-party products, services, programming or elements
generally not depicted in Exhibit A. DCTI will review, delete, edit,
create, update and otherwise manage all content available on or
through the Co branded Weather@Home site in accordance with the
terms of this Agreement. DCTI will ensure that the Co-branded
Weather@Home site does not in any respect promote, advertise, market
or distribute the products, services or content of any other
interactive service or any entity reasonably construed to be in
competition with @Home. Additionally DCTI will bear responsibility
for the implementation, management and costs associated with the
Co-branded Weather@Home site.
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b) Weather Content. Weather@Home and Co-branded Weather@Home will
consist of a News On-Line weather service that is rich in graphics,
text, and animations and will include, at a minimum, weather data
supplied by DCTI as follows:
i) 24-hour round-the-clock weather information;
ii) Day Local Forecast, Regional Forecast, & National Forecast;
iii) Local, Regional, and National Radar Map;
iv) Local, Regional, and National Satellite Imagery;
v) Severe Weather Report; and
vi) Weather Personalization Features.
c) Ad Inventory At part of its consideration hereunder, DCTI will
provide @Home with advertising banners at no cost in the amounts set
forth herein to promote Weather@Home or other @Home offerings. Such
banner Impressions shall be provided on a "run-of-site" basis, that
is, the banner Impressions shall be substantially distributed
randomly both throughout The Weather Labs Online and over the course
of a twenty-four (24) hour day, until such banner Impressions are
achieved at the following levels: 2,000,000 banner Impressions
during the first Contract Year, 3,500,000 banner Impressions during
the second Contract Year, and 5,000,000 banner Impressions during
the third Contract Year. If DCTI is unable to deliver the minimum
number of Impressions, subject to @Home's approval (which shall not
be unreasonably withheld), DCTI will provide @Home, as its sole
remedy, with a comparable promotional placement.
d) Production Work. DCTI will be responsible for all production work
associated with Co-branded Weather@Home, including all related costs
and expenses.
e) Hosting; Communications. DCTI will be responsible for all
communications, hosting and connectivity costs and expenses
associated with the Co-branded Weather@Home site. In addition, DCTI
will provide all computer hardware (e.g., servers, network devices,
routers, switches, telephones and other similar equipment) and all
computer software (e.g., web servers, operating systems,
applications, databases and other similar resources) necessary for
DCTI to access the @Home Network.
f) Traffic Flow. DCTI will take reasonable efforts to ensure that @Home
traffic is either kept within the Co-branded Weather@Home site or
channeled back into the @Home Network (with the exception of
advertising links sold and implemented pursuant to the Agreement).
The Parties will work together on implementing mutually acceptable
links from the Co-branded Weather@Home site back to the @Home
Service.
g) Active Web Presence. During the term of this Agreement, WeatherLabs
will maintain an Active Web Presence. For the purpose of this
Agreement, "Active Web Presence" means the maintenance of the
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WeatherLabs World Wide Web site that offers at least the level of
performance and functionality as offered on the Effective Date
(including breadth and depth of offerings, services and suppliers).
h) Quality of Services. If the quality of the primary features and
functions of Weather@Home (including frequency of updates, breadth
and depth of coverage, usability, etc.) are not substantially equal
to or better than the analogous functions and features provided by
other third party content providers of weather information, then
@Home may so notify DCTI in writing of such deficiencies, including
a description of how Weather@Home is deficient. Within thirty (30)
days of receiving such notice DCTI will provide @Home with a
reasonable plan for rectifying such deficiencies. Such plan must be
completed as soon as possible and in no event later than ninety (90)
days after the date DCTI received the notice of deficiency. If DCTI
fails to provide such plan or to implement it within such periods,
or if such implementation does not rectify the specified
deficiencies, then @Home may terminate all or any relevant portion
of the "Exclusive Position" granted to DCTI under Section 2 above.
i) @Home Exclusive Position. During the term of this Agreement, DCTI
will not directly distribute the WeatherLabs content through any
Distribution Affiliates.
j) Customer Support. @Home will forward all telephone calls and e-mails
@Home receives related to Weather@Home to DCTI personnel if weather
support is needed.
k) Weather Data Feed. DCTI will provide @Home HTTP access to a
regularly updated weather data file, in a mutually agreed upon
format defined by both parties.
1) Problem Escalation. DCTI will provide a contact point for problem
escalation. DCTI will make all reasonable efforts to respond to
problem escalation within one hour of notification.
6. Joint @Home/DCTI Contribution.
a) User Interface and Content. @Home and DCTI will mutually agree on
the User interface design and on the types of content which appear
in:
i) The Weather@Home page, which shall be consistent with the @Home
look-and-feel, and
ii) The Co-branded Weather@Home site.
b) Technical Specifications. DCTI and @Home will mutually agree upon
the technical specifications for Weather@Home and Co-branded
Weather@Home. If @Home makes changes in the applicable technical
specifications, DCTI will make good faith efforts to comply with
such changes.
c) @Home User Interface Change @Home reserves the right to change the
@Home Service user interface at its discretion; provided that: (a)
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@Home will give DCTI reasonable advance notice of any change that is
reasonably likely to have a material impact on DCTI promotional
placements (including, among other things, the size, functionality,
prominence or relative importance of such placements) or advertising
Impressions and an opportunity to consult with @Home regarding such
change, and (b) following any such change, @Home will provide DCTI
with promotional and exclusivity placements substantially similar to
those described in this Agreement.
7. Cash Compensation.
a) Guaranteed Service Payments to @Home The parties have agreed that
the cash value of the services provided by @Home during the term of
the agreement (as outlined hereunder) are One Hundred Fifty Thousand
Dollars ($150,000) in Contract Year one, Three Hundred Fifty
Thousand Dollars ($350,000) in Contract Year two, and Five Hundred
Thousand Dollars ($500,000) in Contract Year 3. In consideration for
the above services, DCTI will pay @Home a non-refundable guaranteed
payment of One Million Dollars US ($1,000,000) as follows:
i) Upon execution of this Agreement:
a) Two Hundred Sixty-Six Thousand Dollars (US$266,000); and
b) 20,534 shares common stock of DCTI to be registered on an
S3 Shelf Registration Statement (the "Common Stock"), such
number of shares of Common Stock as determined by dividing
the 12-day trailing average price per share of DCTI Common
Stock for the 12 days prior to the Effective Date,
computed as nine dollars and seventy four cents ($9.74)
per share, as reported on the NASDAQ Stock Market (the
"Market Price") into Two Hundred Thousand Dollars (US
$200,000).
c) DCTI represents and warrants that it is eligible to file
an S-3 Shelf Registration (the "Registration Statement")
and will complete such registration within ninety (90)
days of the Effective Date. The Registration Statement
shall remain in effect for a period of one year from its
effective date.
ii) On the first anniversary of the Effective Date: Two Hundred
Sixty-Seven Thousand Dollars (US $267,000); and
iii) On the second anniversary of the Effective Date: Two Hundred
Sixty-Seven Thousand Dollars (US $267,000).
b) Method of Payment. Cash payments will be made by check or wire
transfer to the following account: Silicon Valley Bank Santa ▇▇▇▇▇,
Routing/ Transit # ▇▇▇▇▇▇▇▇▇, For Credit of At Home Corporation,
Credit Account # 3300113199, By Order of: DCTI.
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8. Warrants.
a) Grant of Warrants.
i) First Warrant. DCTI will grant to @Home a warrant representing
the right for a seven (7) year period to purchase an aggregate
of One Hundred Thousand (100,000) shares of unrestricted DCTI
Common Stock (the "Warrant Shares") at an exercise price of
nine dollars and seventy four cents ($9.74) per share. Such
warrant shall be covered by the Registration Statement.
ii) Second Warrant. DCTI will grant to @Home a warrant representing
the right for a seven (7) year period to purchase an aggregate
of One Hundred Thousand (100,000) shares of unrestricted DCTI
Common Stock (the "Performance Warrant Shares") at an exercise
price equal nineteen dollars and forty-eight cents ($19.48) per
share. Such warrant shall be covered by the Registration
Statement.
iii) The parties will work together to execute warrant documents
within thirty (30) days of the Effective Date.
b) Vesting of Warrant Shares. The Warrant Shares granted hereunder
shall vest and become exercisable immediately upon the Effective
Date.
c) Vesting of Performance Warrant Shares. The Performance Warrant
Shares granted hereunder shall vest and become exercisable in
accordance with the following schedule:
i) At the end of the first Contract Year, provided that
Weather@Home shall have received at least three million
(3,000,000) Impressions during each of the foregoing quarters
or a total of twelve million (12,000,000) Impressions over the
course of the Contract Year, thirty-three percent (33%) of the
Performance Warrant Shares (33,333.33 shares) shall vest and
become immediately exercisable.
ii) At the end of the second Contract Year, provided that
Weather@Home shall have received at least ten million
(10,000,000) Impressions during each of the foregoing quarters
or a total of forty million (40,000,000) Impressions over the
course of the Contract Year, thirty-three percent 33% of the
Performance Warrant Shares (33,333.33 shares) shall vest and
become immediately exercisable. In addition, up to 33%
(33,333.33) additional Performance Warrant Shares shall vest
and become immediately exercisable as of this date to the
extent that: (1) these shares did not vest in the prior
Contract Year due to @Home's failure to reach the Impression
target set forth herein for that Contract Year; and (ii) @Home
has subsequently performed hereunder to remedy any such
shortfall.
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iii) At the end of the third Contract Year, provided that
Weather@Home shall have received at least twenty-one million
(21,000,000) Impressions during each of the foregoing quarters
or a total of eighty four million (84,000,000) Impressions over
the course of the Contract Year, thirty-three percent 33% of
the Performance Warrant Shares (33,333.34 shares) shall vest
and become immediately exercisable. In addition, up to 66%
(66,666.66) additional Performance Warrant Shares shall vest
and become immediately exercisable as of this date to the
extent that:(i) these shares did not vest in the prior Contract
Years due to @Home's failure to reach the Impression target set
forth herein for those Contract Years; and (ii) @Home has
subsequently performed hereunder to remedy any such shortfall.
iv) The warrant agreement shall contain a net exercise provision
such that @Home can commence its Rule 144 holding period on the
date of issuance of the warrants.
v) Notwithstanding the foregoing, all Performance Warrant Shares
shall immediately vest in the event that: (a) @Home and DCTI
enter into a binding agreement with respect to the promotion by
@Home of other content or commerce offerings that may include
either VideosNow or netClearing, both products of DCTI; or (b)
a change of control of DCTI occurs, whichever is earlier.
9. Other Financial Considerations.
a) Advertising Revenue .
i) Inventory Selling on Weather@Home @Home has the exclusive right
to sell advertising inventory on the Weather@Home page.
ii) Inventory Selling on Co-branded Weather@Home DCTI has the
exclusive right to sell promotions, advertisements, links
pointers or similar services or rights on the Co-branded
Weather@Home site. The specific advertising inventory within
the Co-branded Weather@Home site win be as reasonably
determined by DCTI. Notwithstanding the foregoing, in the event
that DCTI desires to retain a third party to sell
advertisements in the Co-branded Weather@Home site on behalf of
DCTI, DCTI shall first offer to @Home the right to sell such
Advertisements on behalf of DCTI. All advertisements in the
Co-branded Weather@Home site shall be subject to @Home's
then-applicable advertising policies, exclusivity obligations
and prior approval.
iii) Revenue Split on Weather@Home During the term of this
Agreement, @Home will remit to DCTI 40% of its Net Advertising
Revenue generated from Weather@Home.
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iv) No Revenue Split on Co-branded Weather@Home During the term of
this Agreement, DCTI will keep all Advertising and Sponsorship
Revenue generated from Co-branded Weather@Home.
b) Payment Frequency . All Net Advertising Revenue amounts owed from
one party to the other shall be paid within thirty (30) days of the
end of each Semiannual Period of each Contract Year.
c) Alternative Revenue Streams. In the event DCTI or any of its
affiliates receives or desires to receive, directly or indirectly,
any additional revenues in connection with the Co-branded
Weather@Home site (an "Alternative Revenue Stream"), DCTI will
promptly inform @Home in writing, and the Parties will negotiate in
good faith regarding whether DCTI will be allowed to market products
producing such Alternative Revenue Stream through the Co-branded
Weather@Home site, and if so, the equitable portion of revenues from
such Alternative Revenue Stream (if applicable) that will be shared
with @Home.
d) Audit Rights . DCTI will maintain complete, clear and accurate
records of all expenses, revenues and fees in connection with the
performance of this Agreement. For the sole purpose of ensuring
compliance with this Agreement, @Home will have the right, at its
expense, to direct an independent certified public accounting firm
to conduct a reasonable and necessary inspection of portions of the
books and records of DCTI which are relevant to DCTIs performance
pursuant to this Agreement. Any such audit may be conducted after
twenty (20) business days prior written notice.
e) Taxes. DCTI will be solely responsible for the payment of, and will
indemnify and hold @Home harmless from, any sales, use, excise,
import or export value added or similar tax or duty not based on
@Home's net income, including any penalties and interest, as well as
any costs associated with the collection or withholding thereof,
including attorneys' fees.
10. Commencement.
a) Both parties agree to use reasonable commercial efforts to cause
Weather@Home to become commercially available to @Home subscribers
on or before sixty (60) days from the Effective Date.
11. Term and Termination.
a) Initial Term. The initial term of this Agreement will begin on the
Effective Date and will end three (3) years after the date that
Weather@Home page is first commercially available to @Home
subscribers.
b) Termination Due to Breach. Either party may terminate this
Agreement, effective upon thirty (30) days' written notice, if the
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other party fails to cure a material breach of any material
obligation under this Agreement within thirty (30) days following
written notice to such party.
c) No Liability for Termination. Neither @Home nor DCTI will have any
liability to the other merely as a result of termination of this
Agreement in accordance with this Section 11, however all amounts
earned but unpaid as of such termination shall be due and payable to
either party in accordance with the terms set forth in this
Agreement.
12. Trademarks.
a) Use During Agreement. @Home and DCTI each will have the right,
without charge, to use in promoting Weather@Home and the @Home
Service the other's business name and any tradenames, trademarks and
service marks that @Home may adopt for use with the @Home Service
(collectively, "@Home Marks") and that DCTI may adopt for use with
Weather@Home and/or Co-branded Weather@Home (collectively, "DCTI
Marks"). However, any such use must be identical to use by the party
that owns the ▇▇▇▇, and as approved by the owner in writing in
advance, or otherwise in accordance with any trademark usage
guidelines communicated by the owner. DCTI expressly authorizes the
use of DCTI Marks in connection with the outbound marketing
described in Section 3(b), and will provide @Home with guidelines
for how to describe/display the WeatherLabs in @Home marketing
efforts.
b) Proprietary Rights . The owner retains all goodwill and all other
rights thereto, and the other party obtains no goodwill or any other
rights thereto as a result of the use of the owner's Marks. Except
as explicitly set forth herein, no other licenses or rights are
granted or implied.
13. Representatives and Warranties; Indemnification.
a) Mutual Representations and Warranties. Each party to this Agreement
represents and warrants to the other party that: (a) such party has
the full corporate right, power and authority to enter into this
Agreement and to perform the acts required of it hereunder; (b) the
execution of this Agreement by such party, and the performance by
such party of its obligations and duties hereunder, do not and will
not violate any agreement to which such party is a party or by which
it is otherwise bound; and (c) when executed and delivered by such
party, this Agreement will constitute the legal, valid and binding
obligation of such party, enforceable against such party in
accordance with its terms.
b) DCTI Representations and Warranties. DCTI warrants that it has full
power and authority to provide the data provided hereunder (the
"Weather Data") and the Weather Data will be substantially similar
to the specifications set forth in Exhibit A. DCTI represents that
it will deliver the Weather Data to @Home in the form of electronic
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data file(s) via the Internet. DCTI makes no representation or
warranty as to the capability of the Internet to provide a
continuous on-line connection for delivery of the Weather Data. DCTI
will make commercially reasonable efforts to ensure that such online
connection to the Internet is upheld. DCTI does not warrant or
guarantee the accuracy of its weather, forecasts. ALL OTHER
WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR
PARTICULAR PURPOSE ARE HEREBY EXCLUDED.
c) @Home Representations and Warranties. EXCEPT AS OTHERWISE SET FORTH
IN THIS AGREEMENT: (A) @HOME DOES NOT MAKE ANY WARRANTIES CONCERNING
THE @HOME NETWORK OR THE @HOME SERVICE, EXPRESS, IMPLIED OR
OTHERWISE, (B) @Home SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT WITH RESPECT TO THIRD PARTY RIGHTS, AND (C) THE
@HOME NETWORK, THE @HOME SERVICE, AND ANY AND ALL CONTENT AND TOOLS
AND RELATED DELIVERABLES PROVIDED BY @HOME IN CONNECTION WITH: THIS
AGREEMENT ARE PROVIDED BY @HOME "AS IS".
d) Indemnification. Each party will indemnify the other party and its
customers and affiliates for, and hold them harmless from, any loss,
expense (including reasonable attorney's fees and court costs),
damage or liability arising out of any claim, demand or suit
resulting from a breach of any of the warranties of the indemnifying
party in this Section 13. As a condition to indemnification (a) the
indemnified party will promptly inform the indemnifying party in
writing of any such claim, demand or suit and the indemnifying party
will fully cooperate in the defense thereof; and (b) the indemnified
party will not agree to the settlement of any such claim, demand or
suit prior to a final judgment thereon without the consent of the
indemnifying party.
14. Limitation Of Liability.
a) @HOME, @HOME's DISTRIBUTION AFFILIATES AND DCTI WILL NOT BE LIABLE
TO ONE ANOTHER, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY
CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES OF ANY KIND,
SUFFERED BY OR OTHERWISE CONPENSABLE TO THE OTHER, ARISING OUT OF,
UNDER OR RELATING TO THIS AGREEMENT, WHETHER OR NOT ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WITH @HOME OR @HOME'S
DISTRIBUTION AFFILIATES HAVE ANY LIABILITY OF ANY NATURE OR AMOUNT
WHATSOEVER To DCTI ARISING OUT OF, UNDER OR RELATING TO ANY FAILURE
OF THE DISTRIBUTION OF THE CONTENT OR ANY PART THEREOF OR ANY
SOFTWARE PROGRAM, SOFTWARE OR WEB SITE LINK OR LINK MECHANISM, OR
OTHER MATERIAL OR ITEMS THROUGH THE @HOME NETWORK OR OTHERWISE
(INCLUDING BUT NOT LIMITED TO ANY SUCH FAILURE OF DISTRIBUTION
RESULTING FROM A DISTRIBUTION AFFILIATE'S ELECTION NOT TO DISTRIBUTE
MATERIAL OR ITEMS, OR DUE TO TECHNICAL DIFFICULTIES OR OTHERWISE).
IN NO EVENT WILL EITHER PARTYS LIABILITY TO THE OTHER FOR DAMAGES
ARISING OUT
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