Tribune Media Services Television Listings Agreement - Tribune Media Services Inc. and Teleworld Inc.
Tribune Media Services
435 N. Michigan Ave., Suite 1500
Chicago, Illinois 60611
312-222-8650
TRIBUNE MEDIA SERVICES TELEVISION LISTINGS AGREEMENT
This Agreement is made this June 1, 1998, between Tribune Media Services,
Inc., (TMS), a Delaware corporation d/b/a TMS TV Listings and Teleworld, Inc.
(Publisher). TMS TV Listings herein grants to Publisher the non-exclusive
right and privilege of using TMS television program listings information
within its "Product" (as defined in Addendum 1) located at 894 Ross Drive,
Suite 100, Sunnyvale, California 94089 on terms and conditions set forth
herein.
1. TMS shall provide to Publisher [*] television programming listings
as defined in Addendum 2. The service shall be delivered to Publisher over
communication equipment owned by Publisher at Publisher's premises.
2. (a) Publisher shall pay to TMS [*] fees as described in
Addendum 4 for services provided hereunder. TMS will bill Publisher [*]
and invoices shall be payable on or before the last day of the following
[*].
3. Publisher shall pay all sums accruing in each [*] on or before the
last day of the following [*]. Should it become necessary to institute
collection proceedings, Publisher agrees to pay all costs, including
reasonable attorneys' fees, in the event suit is filed. Publisher consents to
the personal jurisdiction of the courts of Illinois for all purposes and
consents to venue in the courts of Cook County, Illinois. Any objections as to
jurisdiction and venue being expressly waived.
4. This Agreement shall continue for eighteen (18) months from June 1,
1998, and shall renew itself for further terms of one (1) year each unless
either party notifies the other by certified letter received by Publisher at
894 Ross Drive, Suite 100, Sunnyvale, California 94089 or by TMS at Tribune
Media Services, Inc., 435 N. Michigan Avenue, Suite 1500, Chicago, Illinois
60611 at least [*] before the end of the then current term of its desire to
terminate, in which event this agreement shall terminate at the end of the then
current term. TMS may also terminate this agreement if any invoice specified in
Clause Two above is not paid within [*] following receipt by Publisher.
Notwithstanding the above, Publisher shall have the right to terminate this
Agreement upon [*] notice to TMS if TMS fails to perform the services it has
agreed to perform as described in Addendum 2 and if such failure continues for
[*] days after Publisher gives TMS notice of the failure or if TMS fails to
deliver the Licensed Data for [*]. In the event TMS fails to deliver the agreed
upon services (as described in Addendum 2) TMS shall remit to Publisher an
amount equal to the [*] multiplied by [*]. Publisher shall pay [*] of [*]
license fees up to [*].
5. Publisher agrees to review all TMS television program listing
transmissions as described in Addendum 2 and notify TMS of any mistakes,
errors or omissions in data. TMS
* Material has been omitted pursuant to a request for confidential treatment.
Such material has been filed separately with the Securities and Exchange
Commission.
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shall not be liable for any loss or damage arising to Publisher by reason of
nondelivery, delay or interruption in delivery of data due to circumstances
beyond the control of TMS, which shall include without limitation, failure of
communication equipment. IN NO EVENT SHALL TMS' LIABILITY TO PUBLISHER OR ANY
OTHER PARTY FOR MISTAKES, ERRORS, OR OMISSIONS IN DATA, FOR NONDELIVERY OR
LATE DELIVERY OF DATA, EXCEED THE AMOUNT PAYABLE BY PUBLISHER TO TMS FOR THE
DATA IN WHICH THE MISTAKE, ERROR, OR OMISSION OCCURRED, OR FOR THE DATA WHICH
WAS NOT DELIVERED OR WAS NOT DELIVERED ON A TIMELY BASIS. IN NO EVENT SHALL
TMS OR PUBLISHER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES
OR LOST-PROFIT DAMAGES.
6. TMS and Publisher (each, "the Indemnifying Party") shall indemnify
and hold the other party and its Affiliates (as defined in this Agreement) and
their respective employees, officers and directors (the Indemnified
Party(ies)) harmless from and against any and all claims, damages, costs,
expenses and other liabilities (whether under a theory of strict liability or
otherwise) by third parties incurred by, or threatened, imposed or filed
against, any Indemnified Party (including, without limitation, (a) costs of
investigation and defense, which shall include without limitation court costs
and reasonable attorney and other expert and third party fees and (b) to the
extent permitted by Law, any fines, penalties and forfeitures in connection
with any proceedings against an Indemnified Party) caused by (i) any breach of
this Agreement by the Indemnifying Party; and (ii) any personal injury,
property damage or physical damage or any other harm or damage, to any person
resulting from or arising out of or related to the Indemnifying Party's
performance or misperformance of any obligation under this Agreement; and
(iii) an actual or alleged infringement of any patent, copyright, trademark,
servicemark or other intellectual property right and/or interest (including
without limitation, misappropriation of trade secrets) arising out of any
action or inaction by an Indemnified Party and/or its agents or employees with
respect to its obligations under this Agreement or any portion thereof, or any
and all other materials or Services furnished directly or indirectly to, or
the use thereof by, the Indemnifying Party(ies) (Infringement Claim(s)). The
indemnification obligations under this Section 6 expressly include an
obligation to indemnify the Indemnified Party for the actions or inactions of
any and all agents, contractors, employees, officers, directors,
subcontractors or other persons working for, under the director of, or on
behalf of the Indemnifying Party with respect to its obligations under this
Agreement. Affiliate(s) mean any corporation or other entity controlling, or
controlled by, or under common control with, a person, as the case may be.
7. Publisher shall not use any of the data provided by TMS hereunder
except for use within its "Product.
8. CONFIDENTIAL/PROPRIETARY INFORMATION
(a) Licensed Data as Confidential/Proprietary Information. The
parties acknowledge that the Licensed Data listed in Addendum 2 received by
Publisher from TMS will be deemed Confidential/Proprietary Information, the
use and disclosure of which is restricted by this Section.
(b) Security Conditions. Confidential/Proprietary Information will
be maintained under secure conditions by Publisher using reasonable security
measures but in any
* Material has been omitted pursuant to a request for confidential treatment.
Such material has been filed separately with the Securities and Exchange
Commission.
2.
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event (a) not less than the same security procedures used by Publisher for the
protection of its own Confidential/Proprietary Information of a similar kind,
and (b) any specific security measures required by this Agreement.
(c) Non-Disclosure Obligation.
(i) Except as my be otherwise permitted by this Agreement,
Publisher shall not disclose any Confidential/Proprietary Information to any
third party without the prior consent of TMS.
(ii) Publisher may disclose the Confidential/Proprietary
Information to those of its personnel who have a substantial need to know the
specific information in question in connection with the Publisher's exercise
of rights under this Agreement. All such Personnel will be instructed by
Publisher that the Confidential/Proprietary Information is subject to the
obligation of confidence set forth by this License Agreement.
(d) No Unauthorized Copying. Except as may be otherwise permitted
by this Agreement, Publisher shall not copy, duplicate, reverse engineer,
reverse compile, disassemble, record, or otherwise reproduce any part of
Confidential/Proprietary Information, nor attempt to do any of the foregoing,
without the prior written consent of TMS. Any tangible embodiments of the
Confidential/Proprietary Information that may be generated by Publisher,
either pursuant to or in violation of this Agreement, will be deemed to be the
sole property of TMS and fully subject to the obligation of confidence set
forth in this Section.
(e) Reports of Third-Party Misappropriation. Publisher shall
immediately report to TMS any attempt by any person of which Publisher has
knowledge (a) to use or disclose Confidential/Proprietary Information without
authorization from TMS, or (b) copy, reverse assemble, reverse compile or
otherwise reverse engineer any part of the Licensed Data.
(f) Post-Termination Procedures. Upon any termination of
Publisher's right to possess and/or use Confidential/Proprietary Information
(e.g., termination or expiration of the license), Publisher shall turn over to
TMS (or, if agreed by TMS, delete or destroy) any disks, tapes, Documentation,
drawings, blueprints, notes, memoranda, specifications, devices, documents, or
any other tangible embodiments of any Confidential/Proprietary Information.
9. In the event Publisher requests format revisions or additional
service, there may be increases in the [*] rate set forth in Paragraph Two
above, or an additional [*], depending on the additional service
requested. Specific rate increases or charges shall be provided to Publisher
by TMS in advance of the actual format changes requested by Publisher.
10. This Agreement shall be governed by and interpreted under the laws
of the State of Illinois. This Agreement shall not take effect until accepted
and executed by an officer of Tribune Media Services, Inc., at Chicago,
Illinois.
11. This Agreement contains the entire understandings of the parties
concerning the subject matter herein, and supersedes and cancels all prior
understandings, agreements, representations, oral or otherwise, between the
parties. This Agreement may only be amended in writing.
* Material has been omitted pursuant to a request for confidential treatment.
Such material has been filed separately with the Securities and Exchange
Commission.
3.
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In Witness Whereof, the undersigned have executed this Agreement on
the dates indicated.
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Accepted by: Accepted by:
TELEWORLD, INC. TRIBUNE MEDIA SERVICES, INC.
<S> <C>
/s/ Michael Ramsay /s/ Barbara S. Needleman
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(Signature of Publisher) (Signature of Tribune Media Services, Inc.,
officer)
Michael Ramsay Barbara S. Needleman
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(Publisher) (Tribune Media Services, Inc., officer)
President and CEO VP
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(Title) (Title)
June 23, 1998 June 26, 1998
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(Date) (Date)
</TABLE>
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ADDENDUM 1: PRODUCT DESCRIPTION AND LIMITATIONS OF USE
Publisher will use television program listings information as described in
Addendum 2 provided by TMS for the delivery of Publisher's personalized
television service to consumers on consumer hardware devices or [*]. Publisher
may use a sample of the Licensed Data for promotional purposes on its Internet
site. No other redistribution or derivative product uses are permitted without
the express written consent of TMS.
* Material has been omitted pursuant to a request for confidential treatment.
Such material has been filed separately with the Securities and Exchange
Commission.
5.
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ADDENDUM 2: DEFINITION OF SERVICE FOR LICENSED DATA
1. TV Schedules ("Schedules"):
--------------------------
SEE ATTACHED DOCUMENT "Data Specification: TV Schedules," including
updates, modifications and revisions thereof.
2. System-Specific Channel Lineups ("Channel Lineups"):
---------------------------------------------------
SEE ATTACHED DOCUMENT "Data Specification: Channel Lineups," including
updates, modifications and revisions thereof.
Publisher agrees to accept the Licensed Data as defined in the attached
documents during the term of this Agreement.
TMS agrees not to change the record format of the Licensed Data without
deliberation, if at all, and only then by notifying Publisher in writing at
least [*] in advance of such change.
TMS and Publisher agree that TMS may change the Licensed Data only by
adding fields at the end of file(s) and/or modifying field formats, but
that TMS may not delete any fields.
* Material has been omitted pursuant to a request for confidential treatment.
Such material has been filed separately with the Securities and Exchange
Commission.
6.
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ADDENDUM 3: SUB-LICENSE AGREEMENT FOR NIELSENTV CODE DATA
Publisher shall be deemed a sublicensee of the Agreement between Tribune Media
Services, Inc. ("Licensee") and Nielsen Media Research, Inc. (NielsenTV") for
use of NielsenTV's Cable On-Line Data ("CODE Data") and shall have a right to
sublicense CODE Data subject to the restrictions and limitations under such
Agreement. Publisher is permitted to store, analyze, reformat, print and
display CODE Data in whole or in part from the TMS Service. Publisher may not
redistribute such CODE Data in whole or in part, nor use such material in a
commercial or business-related manner except in its capacity as a sublicensee as
described herein. Thc termination of the Agreement between Tribune Media
Services as Licensee and NielsenTV shall terminate any and all sublicense rights
and privileges to Publisher.
* Material has been omitted pursuant to a request for confidential treatment.
Such material has been filed separately with the Securities and Exchange
Commission.
7.
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ADDENDUM 4
FEES
On a [*] basis, within Publishers [*]. Publisher pays TMS the following:
<TABLE>
<CAPTION>
1. TV Schedules:
<S> <C>
[*]: $[*] for the Schedules defined in Addendum 2,
delivered [*] each [*].
[*]: $[*] for the Schedules defined in Addendum 2,
delivered [*] each [*].
[*]: $[*] for the Schedules defined in Addendum 2.
[*]: $[*] for the Schedules defined in Addendum 2.
[*]: $[*] for the Schedules defined in Addendum 2.
[*]: $[*] for the Schedules defined in Addendum 2.
2. System-Specific Channel Lineups;
[*]: $[*] for [*] and [*], delivered [*] in [*].
[*]: $[*] for [*] and [*], delivered [*] in [*].
[*]: $[*] for [*] and [*], delivered [*] in [*].
[*]: $[*] for [*] and [*], delivered [*] in [*].
[*]: $[*] for the Channel Lineups defined in Addendum 2, delivered [*] in [*].
[*]: $[*] per Channel Lineup per [*] for the Channel
Lineups defined In Addendum 2.
</TABLE>
* Material has been omitted pursuant to a request for confidential treatment.
Such material has been filed separately with the Securities and Exchange
Commission.
8.