U S WEST COMMUNICATIONS SERVICES, INC. AND MCY MUSIC WORLD, INC.
COLLABORATIVE DEVELOPMENT AGREEMENT
This Agreement ("Agreement"), is effective as of December 31, 1999 between MCY
MUSIC WORLD, INC. ("▇▇▇.▇▇▇"), a Delaware corporation, having a place of
business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and U S
WEST COMMUNICATIONS SERVICES, INC., a Colorado corporation, having a place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("U S WEST").
1. PURPOSE. Under this Agreement, ▇▇▇.▇▇▇ will be an on-line provider of
digital music downloads for U S WEST broadband initiatives, starting with
a co-branded site (the "Broadband Music Channel") in Online Avenue, the U
S WEST broadband portal scheduled to launch in or about April, 2000.
Concurrent with the implementation of the Broadband Music Channel, ▇▇▇.▇▇▇
will introduce a modified narrowband version of the Broadband Music
Channel portal (the "Narrowband Music Channel"), that will link to U S
▇▇▇▇.▇▇▇ pursuant to the terms of this Agreement. U S WEST will consult in
the development, by ▇▇▇.▇▇▇, of the Broadband Music Channel, provide
internet connections ("links") from U S ▇▇▇▇.▇▇▇ to the modified Broadband
Music Channel and perform other marketing and promotion activities
pursuant to the terms of this Agreement.
2. RESPONSIBILITIES OF THE PARTIES.
2.1. BROADBAND MUSIC CHANNEL IMPLEMENTATION
2.1.1 ▇▇▇.▇▇▇ Responsibilities:
A) Technical Trial. ▇▇▇.▇▇▇ shall participate and cooperate with U S
WEST in the Online Avenue Technical Trial ("Technical Trial") of the
broadband portal as soon as possible. ▇▇▇.▇▇▇ shall share any
Technical Trial information it obtains or develops during the trial
period with U S WEST.
B) Site Development. ▇▇▇.▇▇▇ shall build the Broadband Music Channel, a
co-branded music download content site to be integrated within U S
WEST's secure-access broadband portal, Online Avenue, scheduled to
launch as a market trial on or about April, 2000. This site will
contain music content, products, and services normally available on
the English language ▇▇▇.▇▇▇.▇▇▇ web site, optimized as appropriate
to DSL parameters or such other broadband internet services that U S
WEST shall make available to the public for sale during the Term of
this Agreement.
2.1.2 U S WEST Responsibilities:
A) Online Avenue Implementation. U S WEST shall designate the Broadband
Music Channel a preferred digital download music offer relative to
1) the Online Avenue Technical Trial and 2) subsequent U S
WEST-related broadband offerings; and implement the Broadband Music
Channel at the time of the Online Avenue Technical Trial launch.
B) Trade and Press Promotion. U S WEST shall use its best efforts to
promote both the Broadband Music Channel and ▇▇▇.▇▇▇'s role in the
Technical Trial and subsequent and/or related projects in certain
press and trade communications developed or sponsored by U S WEST
for the promotion of said projects.
C) Consumer Promotion. actively provide "best efforts" toward the on
and offline consumer marketing and promotion of the Broadband Music
Channel, including, but not limited to, banners, links and buttons
in other areas of Online Avenue and promotional direct print
directed to current and potential Online Avenue users.
2.1. Narrowband Music Channel IMPLEMENTATION
2.2.1 ▇▇▇.▇▇▇ Responsibilites:
A. Site Development. ▇▇▇.▇▇▇ shall develop, host, and maintain the
Narrowband Music Channel, a co-branded, English-language version
of the Broadband Music Channel which will launch on or around the
same time as the Broadband Music Channel and which will be
accessed by U S ▇▇▇▇.▇▇▇ customers by means of multiple links from
the US ▇▇▇▇.▇▇▇ Web Site and affiliate web sites. This site will
incorporate a U S ▇▇▇▇.▇▇▇ universal navigation bar on each Site
page, and be developed, managed, hosted, and maintained solely by
▇▇▇.▇▇▇. Development and management of the content on this
co-branded site is the sole responsibility of ▇▇▇.▇▇▇. U S WEST is
not a content provider and acts as only an active conduit to the
Co-branded Site(s).
B. Technology. ▇▇▇.▇▇▇ shall ensure that the server hosting the
Narrowband Music Channel be (1) located in a locked, secured
facility; (2) be connected to the Internet at all times at no less
than 1.5 Mbps (the Internet access lines), and (3) be monitored
for problems by staff available on call (at least by pager) 24
hours per day, 7 days per week, 365 days per year (24 x 7 x
365).The Internet access lines must be monitored at least every
two hours to actively watch for possible problems reaching major
connectivity points on the intranet/Internet backbone.
Connectivity will be monitored automatically by using the "PING"
utility. If problems persist, a technician will be paged and will
use "best-efforts" to respond within two (2) hours. Backups of the
system will be performed each business day. The live system will
be placed behind a secure router firewall, preventing outside
access to the server except for ports 80 (HTTP) and 443 (SSL) or
consistent with the secure router firewall specifications. The
Site(s) will be monitored for unauthorized modification
("hacking"). Pages containing unauthorized modifications ("hacked
pages") will be removed immediately upon discovery, and will be
restored from backup as soon as feasible. Server (co-branded web
Site(s) access and transaction) logs (both raw and analyzed, if
any) will, (1) be considered the confidential information of both
parties and shall not be released without written consent of the
disclosing party, (2) be made available at any time to U S WEST
upon request, and (3), be retained by ▇▇▇.▇▇▇ for a period of
eighteen (18) months following termination of this Agreement.
C. Customer Service. ▇▇▇.▇▇▇ shall provide help for users of the
Narrowband Music Channel at least equivalent to that provided to
users of the general ▇▇▇.▇▇▇ Web Site(s). Such help shall include,
but will not be limited to, frequently asked questions and an
e-mail address or email help button displayed on every web Page
for support, which will be answered with every reasonable effort
by a live (phone or email) customer service representative within
two (2) business days of receipt.
D. Technical Service. ▇▇▇.▇▇▇ shall provide contact information by
e-mail to U S WEST Content Development and Implementation Manager
no later than one week before any co-branded Site(s) are made
publicly available under the following terms: for technical help,
▇▇▇.▇▇▇ shall provide U S WEST with the telephone number and pager
number of a technician(s) available on a 24/7 basis; for customer
service assistance, ▇▇▇.▇▇▇ shall make such service available
during regular business hours. Contact information for both
technical help and customer service assistance shall be updated as
needed.
E. Data/Privacy. ▇▇▇.▇▇▇ shall ensure that customer data collected
through the Narrowband Music Channel will not be resold or
otherwise be made available to outside entities, or in any way
used for unsolicited commercial e-mail. The Site(s) privacy policy
(privacy policy subject to approval of U S WEST's Content
Development and Implementation Manager) will be accessible from
every page of the Narrowband Music Channel Site(s). Any e-mail
sent
to users will be solely under a voluntary "opt-in" or registration
procedure performed by the user.
F. Reporting. ▇▇▇.▇▇▇ shall provide usage reports and transaction
reports in a manner that is in keeping with standard industry
practice. Access to these reports will be provided both
electonically (in MS Excel spreadsheet format, e-mailed to the
designated U S WEST Content Development and Implemenation Manager)
and through a secure server. The relevant portion of such records
and accounts shall be available for inspection and audit by an
auditing Party or its representative (but not more than once in
any six (6) month period) during regular business hours and upon
reasonable advance written notice.
G. Approval. ▇▇▇.▇▇▇ shall solicit and receive approval on any
co-branded site introduction or revision from U S WEST's
designated point of contact before launching.
H. ▇▇▇.▇▇▇ Linkage. ▇▇▇.▇▇▇ shall establish and maintain one or more
Internet Hypertext links ("Site links") from the ▇▇▇.▇▇▇ Site
located at Uniform Resource Locator ("URL") ▇▇▇.▇▇▇.▇▇▇ site to
the U S ▇▇▇▇.▇▇▇ home page.
I. Link Expansion. ▇▇▇.▇▇▇ shall work with U S WEST, on an ongoing
basis, to identify music categories within the U S ▇▇▇▇.▇▇▇ Site
from which it would be reasonable to provide links to the
Narrowband music channel co-branded Site(s).
J. Graphic Elements. ▇▇▇.▇▇▇ shall provide "logo buttons," banners
and hypertext ▇▇▇▇-up language ("HTML") (link(s)) for display in
all appropriate Content Provider area(s) of the U S ▇▇▇▇.▇▇▇ Site.
K. Performance. ▇▇▇.▇▇▇ shall be responsible for the professional and
timely implementation of all services due from ▇▇▇.▇▇▇ under this
Agreement, and correct errors or deficiencies resulting from
▇▇▇.▇▇▇ development after receiving written notice of said
deficiencies from U S WEST.
2.2.2 U S WEST Responsibilities:
A. Link Specifications. U S WEST shall provide ▇▇▇.▇▇▇ with site link
specifications, including graphic design, size and location for
placement, via written notification two (2) weeks prior to the
date a Site(s) link(s) is to be established. The parties shall
cooperate to resolve any issues concerning Site link
specifications.
B. Link Establishment. U S WEST shall establish and maintain Site(s)
links from the US ▇▇▇▇.▇▇▇ Site(s) to the corresponding level of
co-branded Sites by way of the ▇▇▇.▇▇▇ button(s), banners, and
HTML links.
C. Link Expansion. U S WEST shall work with ▇▇▇.▇▇▇, on an ongoing
basis, to identify other content categories within the US ▇▇▇▇.▇▇▇
Site from which it would be appropriate to provide links to the
co-branded Area(s).
D. Linkable Platform Expansion. U S WEST shall work with ▇▇▇.▇▇▇, on
an ongoing basis, to identify other U S WEST platforms and
appliances from which it would be appropriate to provide Site
links to areas in the co-branded Site(s).
E. Designate and Reponsiveness. U S WEST shall provide ▇▇▇.▇▇▇ with a
dedicated contact during the Term of this Agreement, and provide
professional and timely responses to any reasonable requests from
▇▇▇.▇▇▇ related to the implementation of this Agreement. Any
delays or errors due to lack of timely response from U S WEST will
not be the responsibility of ▇▇▇.▇▇▇.
F. Consumer Promotion. U S WEST shall use its best efforts to develop
and implement joint marketing and promotion of the Narrowband
Music Channel, including, but not limited to banner ads on U S
▇▇▇▇.▇▇▇ pages, in the "feature partner box" on the Home page, and
U S ▇▇▇▇.▇▇▇ direct mail.
G. Press and Trade Promotion: U S WEST shall use it best efforts to
promote ▇▇▇.▇▇▇'s involvement with U S ▇▇▇▇.▇▇▇ in certain
communications developed or sponsored by U S WEST to promote and
publicize the portal and related/subsequent narrowband ISP offers.
3. LICENSES.
Trademark License. Each party grants to the other party during the Term
of this Agreement a non-exclusive, royalty-free, non-transferable,
world-wide right and license to use its trade names, trademarks,
service names and service marks ("Marks") in compliance with any
guidelines which may be provided from time to time. Such use shall be
solely in connection with the U S ▇▇▇▇.▇▇▇ Site(s), the ▇▇▇.▇▇▇
Site(s), and the Broadband Music Channel, including, but not limited
to, use for promotion and demonstration purposes. The parties agree to
cooperate with the other in facilitating the monitoring and control of
the other's Marks. Each party may immediately terminate the other
party's license to use the Marks if either party reasonably believes
that such use dilutes or tarnishes the value of the Marks. Each party
agrees not to take any action inconsistent with the other party's
ownership of Marks and agrees that any benefits accruing from use of
such Marks shall automatically vest in the Mark's owner. Each party
shall place a "(R)" or a "TM" (as appropriate) with the Marks as
requested by the other party. Nothing in this Agreement shall be deemed
to grant to the other party any ownership interest in the Marks.
4. USE OF THE ▇▇▇▇.
4.1. Use by Licensee; Ownership of the ▇▇▇▇. Each party which utilizes a ▇▇▇▇ of
the other party hereunder shall be deemed a "Licensee" and the party whose
▇▇▇▇ is being utilized shall be deemed a "Licensor." Licensee may use the
▇▇▇▇ so long as that use conforms to the terms of this Agreement. Licensee
acknowledges that Licensor is the owner of the ▇▇▇▇. Licensee shall not at
any time do or suffer to be done any act or thing which will in any way
impair the rights of Licensor in and to the ▇▇▇▇ or the goodwill inherent
in such ▇▇▇▇. It is understood that Licensee shall not acquire and shall
not claim any title to the ▇▇▇▇ adverse to Licensor by virtue of the
license granted herein, or through the Licensee's use of the ▇▇▇▇, it being
expressly agreed that all use of the ▇▇▇▇ by Licensee shall inure to the
benefit of Licensor. Licensee is stopped from challenging the validity of
the ▇▇▇▇ or from setting up any claim adverse to Licensor.
4.2. Use and Appearance of the Marks. Licensee shall comply with the conditions
set forth in the Licensor's Corporate Identity Guidelines, as may be
amended from time to time, or as directed by Licensor, with respect to the
style, color, appearance and manner of use of the ▇▇▇▇, allowing for
limitations imposed by the digital media. Prior to producing, distributing
or displaying any advertising or other material containing the Marks,
Licensee shall obtain prior written approval from Licensor. Licensee is
solely responsible for ensuring that any uses of the ▇▇▇▇ in any
advertising or promotional materials or otherwise is approved by Licensor.
4.3. Quality Control and Right To Inspect. Licensee shall maintain a standard of
quality for the Services offered under the ▇▇▇▇ commensurate with standards
previously achieved and maintained by Licensor and its subsidiaries, and
shall, at a minimum, provide the Services in compliance with all laws and
regulations. Representatives of Licensor shall have the right, at
reasonable times to visit Licensee's facilities or inspect the rendering of
the Services to ensure compliance with this paragraph.
4.4. Veto Power. Each party shall have the exclusive right to veto use of their
corporate brand by the other party, upon written notice to the "Address for
Notices" contained in the signature portion of this contract.
5. GENERAL.
5.1. Each party shall be solely responsible for supplying and managing its
Site(s) at its own expense and neither party shall have any obligations
whatsoever with respect to the Site(s) of the other. Each party shall
manage, review, delete, edit, create, update and otherwise manage all
content and/or services available on or through its respective Site(s).
Neither party has any obligation to pre-screen content posted by users of
its Site(s).
5.2. Neither party shall be required to provide any personal information
regarding specific users, including, without limitation, their names and
addresses or any other information the provision of which could violate any
privacy or other rights of users or third parties. Neither party will be
required to include in any reports any information the provision of which
to the other would cause such party to violate any law, rule or regulation
or any contractual or legal obligation of such party to any other person.
5.3. Hosting Service: U S WEST agrees to enter into certain additional server
and network hosting agreement(s), at the request of MCY, to provide MCY
with server hosting and network hosting services. U S WEST hereby agrees
that any such server hosting and network hosting services shall be provided
to MCY at pricing which is equal to or on more favorable terms than that
which is being provided to any other entity. The foregoing shall include,
but not be limited to, providing MCY with U S WEST authorized services
related to hardware licenses, service and support, applications licenses,
services and support, hosting and monitoring, bandwidth, data storage and
retrieval. Furthermore, U S WEST hereby agrees to modify any such server
hosting and network hosting services agreement(s) in the event that it
enters into an agreement with any other entity after the date of any such
agreement (i) which is on terms more favorable than those being provided to
MCY at such time; or (ii) which is at a lower price than that being paid by
MCY at such time. In any such event, each server and network hosting
agreement with MCY shall be modified to the extent that it shall be recast
on terms no less favorable than the agreement with such third party. The
intent of this provision is to provide MCY with what is commonly known as
"favored nations" benefits. Any modification under any such agreement shall
in no way terminate the Agreement with MCY or U S WEST's obligations
thereunder.
5.4. Each party shall: (i) provide the other with specified graphic files and
Site(s) link addresses and give two (2) weeks advance nofication to the
other of any changes in its URL(s) and , (ii) if developed and maintained
by a party, provide a Site link(s) from such party's appropriate business
alliance index (or similar link listing index) to the other party's
Site(s).
5.5. Either party shall promptly inform the other of (i) any information related
to its Site(s) or this Agreement that could reasonably lead to a claim,
demand, or liability of or against the other party by any third party; and
(ii) any changes in its Site(s) or other intellectual property which would
substantially change the content in any Area(s) to which the other party
has linked.
5.6. Each party retains the right, in its sole discretion, to immediately cease
linking to the other party's Site(s) if in such party's opinion, the other
party's Site(s) infringes on or violates any applicable law or regulation;
any proprietary right of any third party; or is defamatory, obscene,
offensive or controversial. Notwithstanding any exercise of, or failure to
exercise, such right, each party shall have the sole and exclusive
responsibility for its respective Site(s).
5.7. ▇▇▇.▇▇▇ shall retain all right, title, and interest in and to the ▇▇▇.▇▇▇
Site(s). U S WEST shall retain all right, title, and interest in and to the
U S ▇▇▇▇.▇▇▇ Site(s). The parties will jointly retain all right, title, and
interest in and to the Co-branded Area(s).
5.8. Each party shall work with the other to develop collaborative traffic
driving and brand awareness-building marketing programs.
6. FEES
6.1. ▇▇▇.▇▇▇ shall remit $25,000 per month to U S WEST beginning January 3,
2000. All subsequent payments are due and payable by the 10th calendar day
of each month. Late payment charges may be assessed on past due amounts at
1 1/2% percent per month, or the highest lawful rate, whichever is less.
Customer accepts responsibility for all federal, state and local taxes paid
or payable under this Agreement, including but not limited to sales, use,
excise and gross receipt taxes.
6.2. Revenue Sharing of Transactional Revenue. In addition to the MCY Payments
specified in Section 6.1 above, when ▇▇▇.▇▇▇ sells digital music downloads
from its Broadband Music Channel and Narrowband Music Channel, the revenue
from each digital music download sale will be allocated as 50% of the Net
Revenue to the other Party and 50% of the Net Revenue to the selling Party.
Net Revenue shall be defined as Gross Revenues net of direct costs (e.g.
agency and third-party commissions, artist and software royalities,
mechanical royalties, bandwidth and internet access costs, credit card
processing fees, taxes, duties and credits). All advertising or other
revenue (other than from the sale of digital downloads) which are produced
or realized from exploitation of the Broadband Music Channel or any
co-branded site shall be the sole property of ▇▇▇.▇▇▇.
6.3. Payments pursuant to sections 6.1 and 6.2 shall be made by check and
remitted to the following address: U S WEST Communications Services, Inc.
Department 232, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Payments will be accompanied by reports
containing sufficient information for the calculation of such amounts.
These reports will be provided both electronically (in MS Excel spreadsheet
format, e-mailed to the designated U S WEST representative) and printed.
6.4. Taxes based on either party's net income will remain that party's
responsibility. ▇▇▇.▇▇▇ agrees to pay directly taxes it incurs under the
law.
7. TERM/TERMINATION
7.1. The initial term of this Agreement shall begin on the Effective Date and
shall continue for one (1) year ("Initial Term"). ▇▇▇.▇▇▇ may, at its
option, extend the term of this Agreement an additional one (1) year upon
providing U S WEST with written notice thirty (30) days prior to the
conclusion of the Initial Term. Either party may terminate this Agreement
at any time upon thirty (30) days written notice. Except as specified in
Section 7.2 below, in the event ▇▇▇.▇▇▇ terminates this Agreement without
cause during the Initial Term, ▇▇▇.▇▇▇ shall remit to U S WEST a
termination fee equal to $250,000 or the total amount due remaining in the
Agreement, whichever is less. A termination fee will not apply if ▇▇▇.▇▇▇
terminates this Agreement at the conclusion of the Initial Term, or
thereafter, pursuant to this section.
7.2. Notwithstanding anything to the contrary herein, upon written notice,
either party may immediately terminate this Agreement, in whole or in part,
without liability to the other party, if such party cancels their Site(s)
or any component thereof necessary to offer the Site link(s) as
contemplated hereby.
7.3. Upon the termination or expiration of this Agreement, (i) each party shall
promptly return all confidential and proprietary information and other
information, documents, manuals, equipment and other materials belonging to
the other party; (ii) each party shall immediately cease using all
Materials of the other party in any form; (iii) each party shall terminate
the Site link(s) established pursuant to this Agreement; and (iv) all
licenses granted herein shall terminate. All Co-branded web pages covered
under this agreement shall be removed from the server no later than one (1)
business day following termination of the agreement.
8. CONFIDENTIALITY.
Each party acknowledges and agrees that any and all information relating to
the other party's business and not publicly known including, without
limitation, the contents of this Agreement, technical processes and
formulas, source codes, names, addresses and information about users and
advertisers, product designs, sales, costs and other unpublished financial
information, product plans, and marketing data is confidential and
proprietary information. Each party agrees that it shall take reasonable
steps, at least substantially equivalent to the steps as it takes to
protect its own proprietary information, during the Term of this Agreement,
and for a period of two (2) years following termination of this Agreement,
to prevent the duplication or disclosure of any such confidential and
proprietary information. To the extent that such information is publicly
known, already known by, or in the possession of the non-disclosing party;
is independently developed by the non-disclosing party; is thereafter
rightly obtained by the non-disclosing party from a source other than the
disclosing party; or is required to be disclosed by law, regulation, or
court order; then there shall be no restriction of the use of such
information.
9. REPRESENTATIONS WARRANTIES AND INDEMNIFICATION.
9.1. Representations and warranties. U S WEST represents and warrants to ▇▇▇.▇▇▇
that (i) its Site(s) is/are or will be functional Internet Site(s)
accessible to subscribers of U S ▇▇▇▇.▇▇▇ and to potential subscribers of
Online Avenue; (ii) the Site(s) do not and will not contain any content,
materials, advertising or services that infringe on or violate any
applicable law or regulation, any proprietary right of any third party
(including copyright, trademark, patent, and trade secret), or which is
defamatory, obscene or offensive; (iii) it has the right and authority to
enter into and perform all obligations under this Agreement; and (iv) it
shall comply with all applicable laws, statutes, ordinances, rules and
regulations with respect to its Site(s). In the event of an error, delay,
defect, breakdown or failure of its Site(s), U S WEST's obligation shall be
limited to the use of reasonable diligence under the circumstances to
restore its Site(s) to operation.
9.2. Representations and warranties. ▇▇▇.▇▇▇ represents and warrants to U S WEST
that (i) all Co-branded Area(s) will be developed in a workmanlike manner;
(ii) all Co-branded Area(s) will conform to the specifications and
functions set forth in this Agreement; (iii) its Site(s) is/are or will be
functional Internet Site(s) accessible to subscribers and users of the
Internet; (iv) the Co-branded Area(s) do not and will not contain any
content, materials, advertising or services that infringe on or violate any
applicable law or regulation, any proprietary right of any third party
(including copyright, trademark, patent, and trade secret); (v) the Site(s)
do not and will not contain any content, materials, advertising or services
that give rise to any private cause of action, or which is defamatory,
obscene or offensive; (vi) it has the right and authority to enter into and
perform all obligations under this Agreement; and (vii) it shall comply
with all applicable laws, statutes, ordinances, rules and regulations with
respect to its Site(s). In the event of an error, delay, defect, breakdown
or failure of its Site(s), ▇▇▇.▇▇▇'s obligation shall be limited to the use
of reasonable diligence under the circumstances to restore its Site(s) to
operation. Notwithstanding any respresentation or warranty to the contrary
in this Paragraph, U S WEST understands that ▇▇▇.▇▇▇ distributes, streams
and offers for sale or digital download all forms of musical expression and
entertainment content, some of which may be considered controversial to the
general public or subscribers of U S WEST services. Accordingly, no term,
representation or warranty in this Paragraph shall be deemed to give U S
WEST a right to cancel, or otherwise place ▇▇▇.▇▇▇ in breach or default of
this Agreement as a result of ▇▇▇.▇▇▇ making such content available for
distibution, including, but not limited to, digital download, streaming or
sale on the ▇▇▇.▇▇▇ site or any co-branded site.
9.3. Indemnity. Each party will defend, indemnify, save and hold harmless the
other party, the other party's Affiliates, and their officers, directors,
agents, and employees from any and all third-party claims, demands,
liabilities, costs or expenses, including reasonable attorney fees
("Liabilities"), resulting from the indemnifying party's breach of any
material duty, representation, or warranty
contained in this Agreement, except there shall be no obligation to
indemnify, defend, save and hold harmless where Liabilities result from the
gross negligence or knowing and willful misconduct of the other party. Each
party agrees to (i) promptly notify the other party in writing of any
indemnifiable claim and (ii) give the other party the opportunity to defend
or negotiate a settlement of any such claim at such other party's expense
and cooperate fully with the other party, at that other party's expense, in
defending or settling such claim. Each party reserves the right, at its own
expense, to participate in the defense of any matter otherwise subject to
indemnification by the other party.
9.4. The parties, their Affiliates and their owners, directors, officers,
employees, or agents shall indemnify and hold harmless each other (the
"Indemnified Party"), against all liability (including, but not limited to,
court costs and reasonable attorneys' fees) arising from any claims that
either party's content infringes any trade secrets, trademark, copyright or
United States patent rights of any third party. The Indemnified Party
agrees to promptly notify the other party of any such claims, permit the
other party to control any resulting litigation or settlement, and
reasonably cooperate with the defense of any such claims at the other
party's expense.
10. LIMITATION OF LIABILITY AND DISCLAIMER.
10.1. Liability. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SPECIFICALLY SET
FORTH IN THIS AGREEMENT or DAMAGES FOR PERSONAL INJURY OR PROPERTY DAMAGE,
OR FOR GROSS NEGLIGENCE OR WILFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE
TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES) ARISING FROM THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO,
LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, except that either
party shall be entitled to receive consequential damages for a breach OF
ANY LICENSES GRANTED UNDER this Agreement.
10.2. No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
Representations OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER
SUBJECT TO THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
11. GENERAL PROVISIONS.
11.1. Amendment. No change, amendment or modification of any provision of this
Agreement shall be valid unless set forth in a written instrument signed by
both parties. This Agreement sets forth the entire Agreement and supersedes
any and all prior Agreements, written or oral, of the parties with respect
to the transactions set forth herein.
11.2. Assignment. Neither this Agreement, nor any rights hereunder in whole or
in part, shall be assignable or otherwise transferable by either party;
provided that either party may assign or transfer this Agreement and rights
and obligations hereunder to any current or future Affiliate or successor
if such assignee agrees in writing to the terms and conditions herein.
11.3. Compliance with Laws. This Agreement and the parties' actions under this
Agreement shall comply with all applicable federal, state, and local laws,
rules, regulations, court orders, and governmental or regulatory agency
orders.
11.4. Construction. In the event that any provision of this Agreement conflicts
with the law under which this Agreement is to be construed, or if any such
provision is held invalid by a court with
jurisdiction over the parties to this Agreement, such provision shall be
deemed to be restated to reflect as nearly as possible the original
intentions of the parties in accordance with applicable law, and the
remainder of this Agreement shall remain in full force and effect. There
shall be no presumption for or against either party as a result of such
party being the principle drafter of this Agreement.
11.5. Dispute Resolution. Any claim, controversy or dispute between the parties,
the parties' Affiliates, their agents, employees, officers, or directors
("Dispute") shall be resolved by arbitration conducted by a single
arbitrator engaged in the practice of law and familiar with the subject
matter of the Dispute, under the then current rules of the American
Arbitration Association ("AAA"). The arbitrator shall have authority to
award compensatory damages only. The arbitrator's award shall be final and
binding and may be entered in any court having jurisdiction thereof. Each
party shall bear its own costs and attorneys' fees and shall share equally
in the fees and expenses of the arbitrator. The arbitration shall occur in
the City and State of the party against whom the arbitration is brought,
and the laws of such state shall govern the construction and interpretation
of the Agreement. It is expressly agreed that the arbitrator shall be
authorized to issue injunctive relief pending an award in arbitration and
either party may seek relief in an appropriate court of law to enforce such
determination by an arbitrator.
11.6. Independent Contractors. The parties to this Agreement are independent
contractors. Neither party is an agent, representative, or partner of the
other party. Neither party shall have any right, power or authority to
enter into any agreement for, or on behalf of, or incur any obligation or
liability of, or to otherwise bind, the other party. This Agreement shall
not be interpreted or construed to create an association, agency, joint
venture or partnership between the parties or to impose any liability
attributable to such a relationship upon either party.
11.7. No Waiver. The failure of either party to insist upon or enforce strict
performance by the other party of any provision of this Agreement, or to
exercise any right under this Agreement, shall not be construed as a waiver
or relinquishment of such party's right to enforce any such provision or
right in any other instance.
11.8. Notice. Any notice, approval, request, authorization, direction or other
communication under this Agreement shall be given in writing and shall be
deemed to have been delivered and given for all purposes (i) on the
delivery date if delivered personally to the party to whom the same is
directed; (ii) one (1) business day after deposit with a commercial
overnight carrier with written verification of receipt; or (iii) five (5)
business days after the mailing date whether or not actually received, if
sent by U.S. mail, return receipt requested, postage and charges prepaid,
or any other means of rapid mail delivery for which a receipt is available
to the Contact at the address of the party to whom the same is directed.
11.9. Facsimile Signature Authorized. If a Party returns this Agreement by
facsimile machine, the signing Party intends the copy of this authorized
signature printed by the receiving facsimile machine to be its original
signature.
12. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
MCY MUSIC WORLD, INC. U S WEST COMMUNICATIONS SERVICES, INC.
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Authorized Signature Authorized Signature
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Name Typed or Printed Name Typed or Printed
Chief Executive Officer Director - Internet Services
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Title: Title
12/31/99 12/30/99
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Date: December 31, 1999 Date
Address for Notices: Address for Notices:
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With a Copy to: With a Copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ U S WEST Law Department
MCY Music World, Inc. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
1133 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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