Marketing Agreement - Reuters NewMedia Inc. and SportsLine USA Inc.
MARKETING AGREEMENT
Agreement dated March 12, 1996 by and between REUTERS NEWMEDIA INC., with its
principal office located at 1700 Broadway, New York, New York 10019 ("Reuters"),
and Sportsline USA, Inc. with its principal office at 6340 N.W. 5th Way, Fort
Lauderdale, Florida 33309 ("Sportsline").
1. DEFINITIONS
1.1. "Affiliate" means, with respect to any given Person, any other
Person directly or indirectly Controlling, Controlled by, or
under common Control with, such Person.
1.2. "AGREEMENT" means this agreement, as it may be amended from
time to time in accordance with Section 15.6.
1.3. "BUSINESS DAY" means a day that banks are open for business in
New York City.
1.4. "CONTENT" means text, information, data, images (still and
moving) and sound recordings.
1.5. "CONTROL" over a Person means the possession, directly or
indirectly, of the power to direct or cause the direction of
the management and policies of such Person, whether through
the ownership of voting securities or other equity interest,
representation on its board of directors or body performing
similar functions, by contract or otherwise. The terms
"Controlling" and "Controlled" will have corollary meanings.
1.6. "CUSTOMIZED SITE" means a version of the Sportsline Service
that is only available to a Reuters Subscriber accessing the
Sportsline Site from a Reuters Product.
1.7. "DAMAGES" means liabilities, damages, awards, settlements,
losses, claims and expenses, including reasonable attorney's
fees and expenses and costs of investigation.
1.8. "FOREIGN SPORTS SERVICE" means (a) any Internet service,
including a site on the World Wide Web (other than the
Internet services currently provided by Sportsline), (b) any
wireless service, or (c) any proprietary on-line service, in
each case only to the extent that such service provides sports
news and/or information targeted at, and is primarily marketed
and sold to persons located in, a specific country or region
outside the United States.
1.9. "INCLUDING" means including but not limited to.
1.10. "Intellectual PROPERTY RIGHTS" means any patent, design right,
copyright, trademark, service mark (and any application or
registration respecting the foregoing), database right, trade
secret, know-how and/or other present or future intellectual
property right of any type, wherever in the world enjoyable.
1.11. "Laws " means applicable laws, regulations, rules or orders of
any government, administrative authority or court.
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1.12. "Mirror Site " shall mean an Internet site which contains the
exact form and Content (including identical pages) of a parent
Internet site which (i) is located at a geographic location
distinct from such parent Internet site and (ii) is created
for the purpose of improving performance and accessibility to
such parent Internet site PROVIDED, that the term "Mirror
Site" shall not include any Intemet site which is licensed to
or otherwise controlled by an on-line service provider.
1.13. "Person" means any individual, corporation, limited-liability
company, partnership. firm, joint venture, association,
joint-stock company, trust, or other entity or organization,
including a government or political subdivision or an agency
or instrumentality thereof.
1.14. "Reuters Competitor" means Dow Jones, Inc., Bloomberg,
Knight-Ridder, Agence France Presse, The Associated Press,
United Press International, Inc., Telerate, Inc., Global
Financial Information Corp., Individual, Inc. or M.A.I.D, and
any entity that is engaged as a significant part of its
business in the provision of financial news and data.
1.15. "Reuters Product" means any Reuters product or service,
including the Reuters RT.
1.16. "Reuters Subscriber " means any Person that receives any
Reuters Product.
1.17. "Sportsline Content" means all Content created by Sportsline
employees and owned exclusively by Sportline, and all Content
provided to Sportsline by third parties that Sportsline is
allowed to redistribute through Reuters without additional
cost or expense to Sportsline for granting such redistribution
rights.
1.18. "Sportsline Site " means the Sportsline World Wide Web site
that provides sports news, information and related services
located at URL http://www.sportsline.com and any existing or
future Mirror Sites to such site.
2. TERM
2.1. This Agreement will take effect on March 12, 1996, and, unless
terminated earlier pursuant to Section 14, will terminate on
March 12, 2001 (the "Term").
3. FOREIGN SPORTS SERVICE
3.1. For each Foreign Sports Service that Sportsline considers
launching during the Term, it shall provide Reuters with a 60
day exclusive negotiation period, during which Sportsline
shall negotiate only with Reuters with respect to: (a) the
provision of non-United States sports news and information to
be included in such a Service; (b) the branding of such a
Service; and (c) an investment in such a Service, PROVIDED
that Sportsline may also negotiate with other parties approved
by Reuters, which approval shall not be unreasonably withheld.
All such negotiations shall be conducted in good faith between
the parties.
3.2. In the event that the parties are unable to reach an agreement
with respect to the Foreign Sports Service, Sportsline may
not, in any event, enter into an agreement with
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another Person on terms that are equivalent to, or less
favorable to Sportsline than, the terms offered by Reuters,
unless Sportsline has offered Reuters a reasonable opportunity
to agree to those terms.
4. CUSTOMIZED SITE
4.1. The parties shall negotiate in good faith an agreement
pursuant to which Sportsline will develop the Customized Site
such that if a Reuters Subscriber accesses the Sportsline
Site, the Customized Site will be displayed. This agreement
shall contain provisions under which Reuters is paid a share
of the revenue from such Customized Site. Sportsline's
obligations are subject to the technological feasibility of
providing the Customized Site.
4.2. If Sportsline develops the Customized Site as provided herein,
Sportsline shall not, during the Term, configure the
Sportsline Site to provide a service similar to the Customized
Site to any Reuters Competitor.
5. USE OF SPORTSLINE CONTENT
5.1. Sportsline agrees that it will grant Reuters the exclusive
right to redistribute Sportsline Content within a Reuters
Product as part of a sports news service. The parties shall
negotiate in good faith an agreement setting forth, among
other things, the royalty to be paid by Reuters to Sportsline
for inclusion of the Sportsline Content in a Reuters product
or service. The grant of rights will not prohibit Sportsline
from providing Sportsline Content to the Sportsline Site or
from licensing Sportsline Content to any Web Site or online
services, PROVIDED that such other Web Site or online services
is not owned or operated by a Reuters Competitor, and PROVIDED
further that such Content is not provided by Sportsline as
part of a general sports news service.
5.2. Sportsline shall use its best efforts to enter into agreements
with third Person Content providers that permit Sportsline to
grant Reuters the rights of redistribution set forth in
Section 5.1.
6. SUPPLY OF REUTERS CONTENT
6.1. In the event that Sportsline seeks to license Content
specifically related to sports outside the United States for
use in the Sportsline Site or for use in any other Sportsline
venture in the United States, then PROVIDED such Content is
already owned, licensed or produced by Reuters, Sportline
shall provide Reuters with reasonable notice thereof and an
opportunity to make a proposal for the provision of such
Content. Sportsline agrees that if the Reuters proposal is
equivalent to, or better than, a proposal received from a
third Person, Sportsline shall license such Content from
Reuters. Nothing herein shall prohibit Sportsline from
obtaining any content covered by this Section 6.1 from any
third Person to the extent such content is already available
to Sportsline under agreements with such third parties.
7. LIMITATION OF LIABILITY
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7.1. Neither party will be liable for any failure to perform any
obligation hereunder, or from any delay in the performance
thereof, due to causes beyond its control, including
industrial disputes of whatever nature, acts of God, public
enemy, acts of government, failure of telecommunications, fire
or other casualty.
7.2. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO
WARRANTIES, CONDITIONS, GUARANTIES OR REPRESENTATIONS AS TO
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHER
WARRANTIES, CONDITIONS, GUARANTIES OR REPRESENTATIONS, WHETHER
EXPRESS OR IMPLIED, IN LAW OR IN FACT, ORAL OR IN WRITING.
EACH PARTY HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY
WARRANTY, CONDITION, GUARANTY OR REPRESENTATION MADE BY THE
OTHER.
7.3. Under no circumstances will either party, its Affiliates or
their respective officers, directors, employees be liable for
any indirect, incidental, special or consequential damages
with respect to each party's obligations under this Agreement,
regardless of whether such damages could have been foreseen or
prevented.
8. REPRESENTATIONS AND WARRANTIES
8.1. Sportsline represents and warrants to Reuters as of the date
hereof that:
(a) The execution, delivery and performance by Sportsline
of this Agreement do not and will not (i) violate the
organizational documents of Sportsline, (ii) violate
any applicable law, rule, regulation, judgment,
injunction, order or decree, or (iii) require any
notice or consent or other action by any Person
under, constitute a default under, or give rise to
any right of termination, cancellation or
acceleration of any right or obligation of Sportsline
or to a loss of any benefit to which Sportsline is
entitled under, any agreement or other instrument
binding upon Sportsline or any license, franchise,
permit or other similar authorization held by
Sportsline.
(b) To the best of Sportsline's knowledge, the Sportsline
Content to be provided to Reuters hereunder does not
violate the Intellectual Property Rights of any third
Person.
8.2. Reuters hereby represents and warrants to Sportsline as of the
date hereof that:
(a) The execution, delivery and performance by Reuters of
this Agreement do not and will not (i) violate the
organizational documents of Reuters, (ii) violate any
applicable law, rule, regulation, judgment,
injunction, order or decree, or (iii) require any
notice or consent or other action by any Person
under, constitute a default under, or give rise to
any right of termination, cancellation or
acceleration of any right or obligation of Reuters or
to a loss of any benefit to which Reuters is entitled
under, any agreement or other instrument binding upon
Reuters or any license, franchise, permit or other
similar authorization held by Reuters.
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(b) To the best of Reuters knowledge, any Reuters content to be
provided to Sportline hereunder does not violate the
Intellectual Property Rights of any third person.
9. INDEMNIFICATION
9.1. Sportsline will indemnify and hold the Reuters Group and
officers, directors and employees harmless from and against
any and all Damages resulting from or arising out of (a) the
Sportsline Site or any other activities of Sportsline,
including infringement by any Sportsline Content of any third
Person Intellectual Property Rights; (b) any misrepresentation
or breach of representation or warranty of Sportsline
contained herein; or (c) any breach of any covenant or
agreement to be performed by Sportsline hereunder.
9.2. Reuters will indemnify and hold Sportsline and its Affliates
and their respective officers, directors and employees
harmless from and against any and all Damages resulting from
or arising out of (a) the Reuters Products or any activities
of Reuters, including infringement by any Reuters Content of
any third Person Intellectual Property Rights, (b) any
misrepresentation or breach of representation or warranty of
Reuters contained herein; or (c) any breach of any covenant or
agreement to be performed by Reuters hereunder.
10. TERMINATION
10.1. In addition to any other remedy available at law or in equity,
either party may terminate this Agreement immediately, in
whole or in part, without further obligation to the other
party in the event of:
(a) any breach of this Agreement by the other party that
is not remedied within 30 days notice of such breach
in writing; or
(b) the other party's making an assignment for the
benefit of its creditors, the filing of a voluntary
or involuntary petition under any bankruptcy or
insolvency law, under the reorganization or
arrangement provisions of the United States
Bankruptcy Code, or under the provisions of any law
of like import in connection with the other party, or
the appointment of a trustee or receiver for the
other party or its property.
11. GENERAL
11.1. Nothing will be deemed to limit or restrict Reuters from
entering into agreements with any other Person covering
services similar to the Sportsline Site or from offering such
similar services itself, PROVIDED, that Sportsline shall be
relieved from its obligations hereunder to the extent Reuters
enters into an agreement with a competitor of Sportline with
respect to the subject matter of this Agreement or in the
event Reuters offers a service that is competitive with the
Sportsline Site.
11.2. Neither party will make or issue any external press statement
regarding the terms of this
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Agreement unless (a) it has received the express written
consent of the other party, which will not be unreasonably
withheld or (b) it is required to do so by Law or REGULATION.
11.3. This AGREEMENT AND ANY AND ALL ADDENDA, schedules or exhibits
attached hereto represent the entire agreement of the parties
regarding the subject matter hereof. There are no other oral
or written collateral representations, agreements, or
understandings regarding the subject matter hereof.
11.4. This Agreement will be deemed to have been executed and
delivered in the State of New York and it will be governed by
and construed in accordance with the laws of New York.
11.5. All notices, requests and other communications to any party
hereunder will be in writing (including facsimile transmission
or similar writing) and will be given to such party at its
address or telecopy number set forth below or at such other
address or telecopy number as such party may hereafter specify
for such purposes. Each such notice, request or other
communication will be effective (i) if given by telecopy, when
such telecopy is transmitted to the telecopy number specified
in this Section and confirmation of receipt is obtained or
(ii) if given by any other means, when received at the address
specified below.
To Reuters:
Reuters NewMedia Inc.
I 700 Broadway
New York, New York 10019
(212) (Facsimile)
Attn: Senior Vice President
With a copy to:
Reuters America Inc.
I 700 Broadway
New York, New York 10019
(212) 307-9175 (Facsimile)
Attn: General Counsel
To Sportsline:
Sportsline USA, Inc.
N.W. 5th Way
Fort Lauderdale, Florida 33309
Attn: President
(954) 351-2170 (Facsimile)
11.6. This Agreement will be binding upon and inure to the benefit
of the parties, their respective heirs, personal
representatives, successors and assigns. Neither party may
assign any of its rights or delegate any of its duties under
this Agreement without the prior written consent of the other,
PROVIDED that either party may assign this Agreement to any
Affiliate without the necessity of obtaining consent from the
other party.
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11.7. There is no joint venture, partnership, agency or fiduciary
relationship existing between the parties and the parties do
not intend to create any such relationship by this Agreement.
11.8. This Agreement may not be amended, modified or superseded, nor
may any of its terms or conditions be waived unless expressly
agreed to in writing by both parties. The failure of either
party at any time or times to require full performance of any
provision hereof will in no manner affect the right of such
party at a later time to enforce the same.
11.9. If any provision or term of this Agreement, not being of a
fundamental nature, is held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of
the remainder of this Agreement will not be affected.
11.10. The provisions of Section 8 and any and all disclaimers and
indemnities contained herein or in any schedules to this
Agreement will survive the termination of this Agreement.
REUTERS NEWMEDIA INC. SPORTSLINE USA, INC.
By: By: /s/ MICHAEL LEVY
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Title: Executive Vice President Title: President
Date: 3/11/96 Date: 3/11/96
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