Agreement - Thoroughbred Sports Network Inc. and You Bet! Inc.
AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of September 26,
1997 (the "Effective Date"), by and between THOROUGHBRED SPORTS NETWORK, INC.,
a corporation organized pursuant to the laws of the Commonwealth of Kentucky,
with its principal place of business located at 801 Corporate Drive, Lexington,
Kentucky 40503 ("TSN"), and YOU BET!, INC., a corporation organized pursuant to
the laws of the State of Delaware, with its principal place of business located
at 1950 Sawtelle Boulevard, Suite 180, Los Angeles, California 90025 ("You
Bet").
WHEREAS, TSN's business includes maintaining and compiling information on
Thoroughbred race horses and the performance thereof;
WHEREAS, You Bet is developing and marketing a software and an on-line
computer network which provides on-line betting on horse races, and data and
information on race horses; and
WHEREAS, You Bet and TSN desire to enter into this Agreement whereby TSN
would be the exclusive provider to You Bet of certain horse racing data content
for distribution through You Bet's on-line computer network, and TSN and You
Bet desire to work together to develop products for You Bet's on-line service
currently called the "You Bet Racing Network" or any such successor service
or any
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on-line wagering service produced or originated by You Bet ("YBRN"). You Bet and
TSN intend that TSN supply information You Bet uses with respect to certain
types of race horse information.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants contained herein, the parties hereto agree as follows:
1. DEFINITIONS
1.1. ADDED VALUE PRODUCTS: "Added Value Products" shall refer to any
products that are produced by TSN and provided to You Bet for resale in the same
format, including, without limitation, those products set forth in Exhibit "B,"
provided that Past Performances are not Added Value Products.
1.2. CUSTOMER: "Customer" shall mean each person or entity who has an
account and subscribes to the YBRN.
1.3. DOWNLOAD: "Download" shall refer to a Customer request for a single
TSN Licensed Product through the YBRN, which results in the transmission of such
product to the Customer.
1.4. INTELLECTUAL PROPERTY RIGHTS: "Intellectual Property Rights" refers
to any patents, copyrights, trade secrets, moral
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rights, trademarks, trade names, service marks, confidential or proprietary
information; known how, any derivative rights, and any other intellectual or
intangible property of all kinds wherever located.
1.5. LICENSED DATA: "Licensed Data" shall refer to information included
in the Licensed Products.
1.6. LICENSED PRODUCTS: "Licensed Products" shall refer to Past
Performances and Added Value Products, collectively.
1.7. ON-LINE WAGERING SERVICE: "On-Line Wagering Service" shall refer to
a computer on-line service which provides users of such service access to horse
racing information and the ability to place wagers on horse races. You Bet will
provide an On-Line Wagering Service accessible through You Bet's private
computer network or the Internet ("YBRN").
1.8. PARTIES, PARTY: "Parties" shall refer to You Bet and TSN
collectively and "Party" shall refer to either You Bet or TSN individually.
1.9. PAST PERFORMANCES: "Past Performances" shall refer to past
performance lines containing fractional times or points of
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call and margins which are sold in a hard copy or electronic format.
1.10. PREVIOUSLY DEFINED TERMS: The terms "Agreement," "Effective Date,"
"TSN," "YBRN" and "You Bet" shall have the meanings ascribed to them above.
1.11. RACE CARD: "Race Card" shall refer to all Past Performances for one
day of racing at one track (the "Original Track") and may include Past
Performances for not more than eight races from other tracks if those races are
being received by simulcast transmission at the Original Track.
1.12. SUBSEQUENTLY DEFINED TERMS: The terms "Exclusive Products"
(Paragraph 2.5), "Net Revenue" (Paragraph 4.1), "FTP" (Paragraph 5.1), "Data
Updates" (Paragraph 5.1), "Cure Period" (Paragraph 6.2.1) and "Term" (Paragraph
15.1), shall have the meanings ascribed to them below in the Paragraphs
indicated in parentheticals.
2. LICENSE GRANT
2.1. NONEXCLUSIVE LICENSE: For the Term of this Agreement, TSN hereby
grants to You Bet a nonexclusive, worldwide license to reproduce, use and
distribute, by sale or otherwise, the Licensed
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Products and Licensed Data through the YBRN, except that You Bet shall be
entitled to exclusive rights as set forth in Paragraph 2.2.
2.2. LIMITATIONS ON DISTRIBUTION OF ADDED VALUE PRODUCTS: TSN agrees to
not provide any Added Value Products, excluding Past Performances containing
added value data, to ODS Technologies ("On Demand Services") and IWN.
2.3. TSN'S OWNERSHIP OF PAST PERFORMANCES AND ADDED VALUE PRODUCTS:
Subject to the license and limitations of Paragraph 2.1 and 2.2, TSN shall
retain all ownership rights and interest in the Past Performances and Added
Value Products, including, without limitation, the Intellectual Property
Rights therein.
2.4. OTHER DATA. In addition to the Past Performances, TSN shall also
send to You Bet TSN Speed, Pace and Class Ratings, morning line odds and program
numbers at-the-track and at-the-distance statistics, all or part of which You
Bet may, in its discretion, incorporate into the Past Performances without
additional charge; provided, that You Bet may not use any of said ratings or
statistics in any other product it distributes without the prior written consent
of TSN; and provided further that TSN shall send You Bet morning line odds and
program numbers only if
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TSN receives same from Equibase Company and Equibase Company consents to such
sending.
2.5. EXCLUSIVE DEALINGS WITH TSN:
2.5.1 Except as hereinafter set forth, TSN shall be the exclusive
supplier of the Licensed Products (the "Exclusive Products") to You Bet and You
Bet shall not acquire or develop any products identical or comparable to the
Licensed Products for distribution or sale without the expressed written
permission of TSN.
2.5.2 Notwithstanding the provisions of Paragraph 2.5.1, You Bet
may distribute or sell on the YBRN the following handicapping information or
products obtained from entities other than TSN:
2.5.2.1. Handicapping information products that do not
compete with any of the Licensed Products or Licensed Data, including, without
limitation, those handicapping information products set forth in Exhibit C
attached hereto. "Handicapping products" shall not include Past Performances, it
being understood and agreed that TSN shall be the exclusive supplier to You Bet
of Past Performances.
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2.5.2.2 Data and information provided from Bloodstock
Research Information Services, Inc.
2.5.3. OUTPUT CAPABILITIES OF TSN: It is agreed that TSN is capable
of supplying the requirements of You Bet with respect to the Exclusive Products.
If TSN determines at any time that some unavoidable calamity or circumstances
will prevent the continual timely delivery of any of the Exclusive Products,
then TSN shall immediately notify You Bet of that fact. Furthermore, if TSN is
unable to satisfy You Bet's need for any of the Exclusive Products for a period
of thirty days, then You Bet may, in its sole discretion, notify TSN in writing
of its decision to terminate the exclusive dealings obligations of Paragraph 2.5
without liability. In the event that You Bet elects to terminate the exclusive
dealings obligations, then You Bet may acquire, in its sole discretion, any
Exclusive Products from any third party for the remaining Term of this
Agreement.
3. PRICING
3.1. PRICING: TSN shall set the price to be charged by You Bet for the
Added Value Products, provided that, in so doing, TSN shall set prices that are
commercially reasonable and competitive, and provided, however, to the extent
that TSN markets products that are competitive with the Added Value Products,
TSN shall not set a
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price for the Added Value Products that is in excess of the regular prices TSN
establishes for its own products.
3.2. FREE COPIES: You Bet may provide Customers any Licensed Products or
Licensed Data free of charge, provided, however, that You Bet pay TSN any
royalties that You Bet would owe. If You Bet provides Customers with free Past
Performances, then You Bet shall owe TSN the amount owed under Paragraph 4.2.1
as if the Customer was charged for downloading the Past Performance. If You Bet
provides customers free Downloads of Added Value Products, then You Bet shall
owe TSN the royalty set forth in Paragraph 4.2.2 applied to the price set for
such Added Value Products pursuant to Paragraph 3.1.
3.3. BUNDLING: You Bet may sell or distribute Past Performances in bundles
at prices established by You Bet, provided that TSN shall be compensated for
each Past Performance that is included in a bundle at the individual Past
Performance rate set forth in this Agreement.
4. PAYMENTS AND ROYALTIES
4.1. NET REVENUE: "Net Revenue" shall mean the gross receipts actually
received by You Bet or that should have been received by You Bet in accordance
with Paragraphs 3.1 and 3.2 from
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distribution or sale of Added Value Products anywhere in the world less the
following amounts to the extent paid or incurred by You Bet or TSN:
(i) Taxes on sale or license, including without limitation, U.S.
federal and state taxes and non-U.S. taxes on sales, use, excise or other taxes,
but not including any tax based on You Bet's income; and
(ii) Any royalties or payments due to Equibase Company or other
third party software and data developers and providers with respect to Value
Added Products. See Exhibit D.
4.2. ROYALTIES. Royalties shall be accounted for in accordance with the
following provisions and shall accrue to TSN as follows:
4.2.1. ROYALTIES ON RACE CARDS INCLUDING PAST PERFORMANCE: For each
Race Card including Past Performances Downloaded through the YBRN, the following
per Download monthly royalty shall apply:
4.2.1.1. For each of the first 9,999 Race Card Downloads
in a given month, the royalty rate is the greater of *** of the Net Revenues
of the Past
*** Represents confidential information filed separately with the Commission
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Performances if the Past Performances are priced at more than *** per
Download or U.S. ***;
4.2.1.2. For each of Race Card Downloads 10,000-14,999 in
a given month, the royalty rate is the greater of *** of the Net Revenues of
the Past Performances if the Past Performances are priced at more than ***
per Download or U.S. ***;
4.2.1.3. For each of Race Card Downloads 15,000-19,999 in
a given month, the royalty rate is the greater of *** of the Net Revenues of
the Past Performances if the Past Performances are priced at more than ***
per Download or U.S. ***;
4.2.1.4. For each of Race Card Downloads 20,000-24999 in a
given month, the royalty rate is the greater of *** of the Net Revenues of
the Past Performances if the Past Performances are priced at more than ***
per Download or U.S. ***;
4.2.1.5. For each of Race Card Downloads 25,000 and beyond
in a given month, the royalty rate is the greater of *** of the Not Revenues
of the Past
*** Represents confidential information filed separately with the Commission
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Performances if the Past Performances are priced at more than *** per
Download or U.S. ***.
4.2.2. ROYALTIES ON ADDED VALUE PRODUCTS: For Downloads of
Added Value Products, *** of all Net Revenues.
4.3. ACCOUNTING OF PAYMENTS: Within thirty (30) days after the last day
of each and every calendar month during the term of this Agreement, You Bet
shall pay the amount of royalties as calculated in accordance with Paragraph 4.2
accrued to TSN in the most recently ended calendar month. Each such monthly
payment shall be accompanied by a written statement setting out how the payment
was calculated by product in sufficient detail to confirm the accuracy and
correctness of the royalty payment made.
4.4. INSPECTION OF RECORDS. During the Term of this Agreement, You
Bet shall keep and retain for two (2) years accurate books of accounts and
records at its principal place of business covering all transactions subject
to a royalty payment or sharing of any earnings received under this
Agreement. Upon reasonable notice of not less than fourteen (14) days, TSN
shall have the right to appoint an employee or an independent auditor to
inspect such books of accounts and records during You Bet's normal business
hours to confirm that the correct amount owing under this Agreement
*** Represents confidential information filed separately with the Commission
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has been paid. The independent auditor shall preserve in confidence all
confidential information of the Parties. If the inspection discloses that
payments made are less than the amount owing under this Agreement, then the
difference shall be immediately paid; and if the difference for any calendar
year exceeds five percent (5%) of the payments that were made for that calendar
year, You Bet shall also reimburse TSN for reasonable costs and expenses
incurred in connection with the inspection. You Bet shall continue to maintain
such books of accounts and records for at least two (2) years after termination
of this Agreement.
5. COOPERATIVE EFFORTS
5.1. INFORMATION DELIVERY: TSN shall use its best efforts to
electronically transmit to You Bet any additions, adjustments, alterations,
corrections or modifications of Licensed Data which You Bet makes available on
the YBRN ("Data Updates"), as soon as possible after such updates are made to
any Licensed Data. TSN shall use its best efforts to transmit data not later
than fifteen minutes after TSN updates such data and You Bet shall be the first
entity to receive all such updates of data.
5.2. PRODUCT DEVELOPMENT: The parties shall cooperate to
enhance the product content of any of the Licensed Products.
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5.3. WEB SITE COOPERATIVE ADVERTISING: The Parties shall exchange
promotional banner advertising on their respective web sites.
5.4. TRAINING: At no cost to You Bet, TSN shall provide You Bet service
representatives and training on Licensed Products and software at TSN offices in
Lexington, Kentucky.
6. BREACH AND CURE
6.1. DEFAULT: Any one or more of the following shall constitute an event
of default hereunder:
6.1.1. Either Party to this Agreement fails to perform or observe
any material covenant, term or condition contained herein, including, but not
limited to, breach of performance, best effort requirements, or payment
requirements; or
6.1.2. Any representation or warranty contained herein or in any
document issued in connection herewith or deemed to have been made hereunder or
made by or furnished on behalf of either Party hereto pursuant to or in
connection with this Agreement, shall be false or misleading in any material
respect as of the date made or deemed to have been made; or
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6.1.3. Either Party to this Agreement shall (i) commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency,
corporation or other similar law now or hereafter in effect that authorizes the
reorganization or liquidation of such Party or its debts or the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or (ii) consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or (iii) make a general assignment for
the benefit of creditors, or (iv) fail generally to pay its debts as they become
due, or (v) take any action to authorize any of the forgoing; or
6.1.4. An involuntary case or other proceeding shall be commenced
by persons that are not bound or affected by this Agreement against either Party
hereto seeking liquidation, reorganization or other relief with respect to it or
its debts under any bankruptcy, insolvency, corporation or other similar law now
or hereafter in effect seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of sixty days; or an order is entered by a
court of competent
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jurisdiction affecting substantially all of the property or affairs of the party
against which proceedings have been commenced under bankruptcy, insolvency,
corporation or other similar laws as now or hereafter in effect and such order
shall remain undismissed and unstayed for a period of sixty days.
6.2. REMEDIES:
6.2.1. Upon the occurrence of an event of default, as described in
Paragraph 6.1 above, the nondefaulting Party may, at its option, give written
notice to the defaulting Party specifying the default together with a statement
of its intent to terminate this Agreement if such default is not corrected by
the defaulting Party within the thirty-day period immediately following the date
of such notice (the "Cure Period"). If at the end of the Cure Period the
defaulting Party has not cured or otherwise corrected the specified default, the
nondefaulting Party may, at its option at any time on or after the expiration of
the Cure Period, in addition to all other rights and remedies available to such
party at law or in equity, deem this Agreement to be terminated upon the date of
issuance of a written notice to the defaulting Party advising such Party of such
termination, provided that the specified default is then continuing.
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6.2.2. Upon termination of this Agreement by either Party, except
as provided in paragraph 2.4, 4 and 5.3 regarding joint ownership and payments
and royalties, neither Party shall have any further rights or obligations
hereunder except as otherwise specifically provided for hereunder.
7. DISCLAIMER OF WARRANTIES
7. 1. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, TSN MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AS TO ANY MATTER
WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY OF ANY INFORMATION,
PRODUCT, PROGRAM, OR SERVICE FURNISHED HEREUNDER.
7.2. MARKETING EFFORTS: Neither Party has made any express or implied
representation, warranty, or agreement as to the amount of royalties or gross
revenue which shall be derived from the distribution of any Licensed Products,
nor has You Bet made any express or implied representation, warranty, or
agreement that there will be any royalties or other sums payable to TSN or that
the Licensed Products will be favorably received by the public. Neither Party
shall incur any liability hereunder based upon any claim that either Party has
failed to realize revenues or to effectuate sales which should have been
realized.
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8. LIMITATION OF LIABILITY
8.1. With multiple processing of complex data, and reliance upon
information acquired from multiple sources, errors and omissions can and do
occur despite efforts to avoid them. Both You Bet and TSN expressly disclaim any
responsibility or liability for any loss or damages resulting to You Bet, TSN or
any third party from errors or omissions in any data provided by TSN and which
is distributed by You Bet through the YBRN.
8.2. In no event will either Party be liable to the other for any
indirect, consequential, special, exemplary, or incidental damages, whether in
contract, tort or otherwise arising from or relating to this Agreement.
9. NOTICE OF DISCLAIMER AND COPYRIGHT.
With respect to You Bet's dissemination of any Licensed Products, You Bet
shall display the disclaimer and copyright notices set forth in Exhibit A when
appropriate.
10. REPRESENTATIONS
10.1. Each party hereto represents that it has the power and
authority to enter into this Agreement, that all actions required
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to permit it to enter into this Agreement have been authorized, and that this
Agreement is duly executed and delivered.
10.2. Each Party hereto represents that this Agreement is a legal, valid
and binding obligation of each of the Parties hereto and is enforceable against
such parties in accordance with its terms.
10.3. TSN hereby covenants, represents and warrants to You Bet that:
10.3.1. TSN is the developer of data TSN incorporates in the
Licensed Products, and no part of the Licensed Products shall infringe upon any
common law or statutory rights in the United States or other country, or any
jurisdiction therein, of any person or entity, including rights relating to
defamation, contract, unfair competition, trademark, patent, copyright, trade
secret, privacy or publicity, or contain any libelous material or any material
which constitutes an invasion of any right of privacy or publicity.
10.3.2. The rights granted to You Bet hereunder are free and clear
of any liens, claims, encumbrances or litigation, whether pending or threatened,
and that TSN has not made nor will make any grant, assignment, transfer or
agreement which will conflict with
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or interfere with any and all of the rights granted to You Bet hereunder.
11. INDEMNIFICATIONS
11.1. INDEMNIFICATION: Each Party shall indemnify and hold harmless the
other Party, its successors, assigns, parents, subsidiaries, affiliates,
licensees, officers, employees, agents and representatives, from and against any
and all claims, losses, deficiencies, damages, liabilities, costs, and expenses
(including, but not limited to, reasonable attorneys' fees and all related
litigation costs and expenses) incurred by the indemnitee Party as a result of
any and all claims, judgments or adjudication against the indemnitee Party
arising from or related to any breach of the representations and warranties set
forth in paragraph 10.
11.2. NOTICE AND CONTROL OF DEFENSE: Each Party shall promptly notify the
other Party of any claim or allegation thereof for which such Party will seek
contribution pursuant to Paragraph 11.1. The Parties shall share joint control
over the defense against such claims covered by Paragraph 11.1 and the
settlement thereof. The Parties shall, each at its own expense and cost,
cooperate fully with the other in the defense of any such claims or allegations
thereof.
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12. DISCREPANCIES IN DATA INCLUDED IN ANY LICENSED PRODUCTS. If You Bet has
actual knowledge of any inconsistencies or discrepancies between items of
information contained in the Licensed Products and information supplied to
others by TSN, or inconsistencies or discrepancies between such items and
information of a similar nature supplied by others, You Bet shall notify TSN of
any such inconsistencies or discrepancies. Upon such notification TSN shall, at
its sole and absolute discretion, make any necessary changes. TSN shall inform
You Bet of any action taken with respect to such reported inconsistencies or
discrepancies.
13. FORCE MAJEURE
13.1. Notwithstanding anything contained herein to the contrary, in the
event either Party to this Agreement fails to perform any obligations hereunder
assumed by it and such failure is due to occurrences in nature, earthquakes,
injunctions, lockouts, riots or civil unrest, fires, epidemics, casualties,
boycotts, technical difficulties (whether computer related or otherwise),
failure of suppliers to supply data to TSN, strikes or labor disputes, acts of a
governmental authority, or other interference through legal proceedings or for
any other cause which in not due to the fault or negligence of such Party, such
failure shall not be deemed to be a breach by such Party of its obligations
hereunder, though such Party shall use its best efforts to put itself in a
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position to carry out all of the obligations which, by the terms hereof, it has
assumed irrespective of the occurrence of any force majeure event.
13.2. Should a singular force majeure event be in existence for a
continuous period of thirty (30) days or more the Party not claiming the
protection of Subsection 13.1 above may terminate this agreement,
notwithstanding anything contained herein to the contrary, by giving 30 days
written notice of such termination to the party against whom the force majeure
is working. At the end of the said 30-day period this Agreement shall
automatically terminate so long as the force majeure event which generated said
letter is still in existence.
14. CONFIDENTIALITY
14.1. Each Party hereto hereby covenants with the other to keep
confidential the terms of this Agreement and all information relating to the
other Party's business affairs of which it may become aware, unless the
information has been disclosed to the public without breach of this Paragraph
14, or the information is required by a court of law or equity to be disclosed,
or by a governmental agency authorized to demand such disclosure. Any Party
disclosing confidential information must provide notice to the other Party of
such disclosure including the reasons therefore.
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14.2. Paragraph 14.1 shall survive the termination of this License
Agreement.
15. TERM AND TERMINATION
15.1. TERM: Unless sooner terminated by the Parties pursuant to Paragraph
2.7 and 6.2, the "Term" of this Agreement shall extend for a period of five
years from the Effective Date. After the five year term, this Agreement shall be
automatically renewed for an additional five years unless either Party supplies
written notice that the Agreement shall not be renewed six (6) months prior to
expiration of the initial five year term.
15.2. CANCELLATION: The Parties upon mutual consent may terminate this
Agreement at any time with ninety (90) days written notice.
15.3. EFFECT OF TERMINATION: In the event that this Agreement terminates,
for whatever reason:
15.3.1. USE OF LICENSED PRODUCTS: You Bet's right to distribute
any of the Licensed Products shall terminate upon termination of this Agreement.
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15.3.2. RETURN OF CONFIDENTIAL INFORMATION AND EQUIPMENT UPON
TERMINATION: Within thirty (30) days of the termination of this Agreement, each
Party shall return to the other party all equipment, supplies, and confidential
information of the other Party.
15.3.3. PROVISIONS SURVIVING TERMINATION: In addition to any
Paragraphs which are expressly stated elsewhere herein to survive termination of
this Agreement, Paragraphs 7, 8, 10, 11, and 14 to the extent applicable, shall
also survive any termination of this Agreement.
15.3.4. NO LIABILITY FOR EXERCISING TERMINATION RIGHTS: Neither
Party shall be liable for damages of any kind as a result of properly exercising
its respective right to terminate this Agreement according to the terms and
conditions of this Agreement, including Paragraph 6.2, 15.1, and 15.2, and such
termination will not affect any other right or remedy of the terminating Party.
16. GENERAL TERMS AND CONDITIONS
16.1. NOTICES: Any notice, consent or other communication which is
required or permitted to be given under this Agreement shall be in writing and
shall be (i) delivered personally or by Federal Express, DHL or other reputable
courier, (ii) sent by
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express mail, postage prepaid, or (iii) dispatched by facsimile (provided that a
copy of any notice, consent or other communication which is dispatched by
facsimile also shall be delivered personally or by courier as hereinabove
provided or mailed next day express mail service as herein provided to the
parties), as follow:
IF TO YOU BET: You Bet!
1950 Sawtelle Boulevard, Suite 180
Los Angeles, California 90025
Attention: Ron Luniewski
Telephone: (310) 444-3343
Fax: (310) 444-3390
IF TO TSN: Thoroughbred Sports Network
801 Corporate Drive
Lexington, Kentucky 40503
Attention: Richard F. Broadbent IV
Telephone: (606) 224-4930
Fax: (606) 223-1854
Such notices, consents and other communications shall be deemed duly given when
received. From time to time and at any time, either Party may by notice in
writing served upon the other as specified above designate a different address
and/or facsimile number or a different or additional addressee to which all such
notices, consents or other communications thereafter are to be given.
16.2. WAIVERS: No waiver, modification or cancellation of any term or
condition of this Agreement shall be effective unless executed in writing by
both Parties hereto. A waiver of any breach of this Agreement by one Party to
the other shall not be construed to have been given in perpetuity. A failure or
delay of either
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Party hereto to enforce at any time any of the provisions of this Agreement, or
to exercise any option which is herein provided for, or to require at any time
performance of any of the provisions hereof, shall in no way be construed to be
a waiver of any such option or provision of this Agreement.
16.3. CONTRACT INTERPRETATION: Ambiguities, inconsistencies, or conflicts
in this Agreement shall not be strictly construed against the drafter of the
language but will be resolved by applying the most reasonable interpretation
under the circumstances, giving full consideration to the Parties' intentions at
the time this Agreement is entered into. Where the context of this Agreement
requires, singular terms shall be considered plural, and plural terms shall be
considered singular. The headings of the various Paragraphs of this Agreement
have been inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement. It is expressly understood and
agreed that, there being no expectation of the contrary between the Parties
hereto, no usage of trade or custom and practice within the industry, and no
regular practice or method of dealing between the Parties hereto, shall be used
to modify, supplement or alter in any manner the terms of this Agreement or any
part hereof.
16.4. INDEPENDENT PARTIES: Nothing contained herein shall be deemed to
create or be construed as creating a joint venture or
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partnership between You Bet and TSN. Neither Party is, by virtue of this
Agreement or otherwise, authorized as an agent or legal representative of the
other party. Neither Party is granted any right or authority to assume or to
create any obligation or responsibility, express or implied, on behalf of or in
the name of the other Party or to bind such other Party in any manner, except as
expressly provided for in this Agreement.
16.5. ENTIRE UNDERSTANDING: This Agreement contains the entire
understanding of the Parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, understandings, and
negotiations, both written and oral, between the parties with respect to the
subject matter hereof.
16.6. SUCCESSORS AND ASSIGNS AND ASSIGNMENT: This Agreement shall be
binding upon and shall inure to the benefit of the successors and assigns of the
parties hereto, provided, however, that this Agreement may not be assigned by
either Party without the prior written consent of the other Party, except to an
affiliate of such Party. "Affiliate" shall mean an entity that is owned or
controlled by such Party.
16.7. AMENDMENTS: All amendments or modifications of this Agreement
shall be binding upon the Parties despite any lack of
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consideration so long as the same shall be in writing and executed by the
Parties hereto in accordance with the other terms of this Agreement regarding
modifications.
16.8. NO THIRD PARTY BENEFICIARIES: This Agreement is not entered into for
the benefit of any person or entity which is not a party hereto.
16.9. REPRESENTATION BY COUNSEL: Each Party has been represented by
counsel in connection with the drafting and negotiation of this Agreement and,
in construing or interpreting this Agreement, no presumptions of any kind shall
be made against any of the Parties on the grounds that one Party was
principally responsible for drafting this Agreement.
16.10. GOVERNING LAW: This Agreement shall be governed by and interpreted
and enforced in accordance with the laws of the Sate of California, without
regard to the conflicts of laws rules thereof.
16.11. ATTORNEY'S FEES: In the event any litigation or other proceeding is
brought by either Party to this Agreement in connection with this Agreement, the
prevailing Party in such litigation or other proceeding shall be entitled to
recover from the other Party all costs, attorneys' fees and other expenses
incurred by such prevailing Party in such litigation.
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<PAGE>
16.12. SEVERABILITY OF CLAUSES: If any provision of this License
Agreement or its application is held to be invalid, illegal, or unenforceable
in any respect, the validity, legality, or enforceability of any of the other
provisions and applications herein shall not in any way be affected or
impaired.
IN WITNESS WHEREOF, the parties hereto have caused this License Agreement
to be executed as of the dates listed below.
THOROUGHBRED SPORTS NETWORK, INC.
By /s/
-------------------------------------------
Name:
-----------------------------------
Title: President
----------------------------------
Date: 9-26-97
-----------------------------------
YOU BET!, INC.
By /s/ Steve A. Molnar
-------------------------------------------
Name: STEVE A. MOLNAR
-----------------------------------
Title: CEO
----------------------------------
Date: 10/1/97
-----------------------------------
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