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EXHIBIT 10.2
LICENSING AND MARKETING AGREEMENT
THIS LICENSING AND MARKETING AGREEMENT ("LICENSING AND MARKETING
AGREEMENT") is made as of January 1, 2001 (the "EFFECTIVE DATE") by and between
NTN Communications, Inc., a Delaware corporation, with offices located at 5966
La Place Court, Carlsbad, CA 92008 ("NTN") and BUZZTIME, Inc., a Delaware
corporation, with offices located at 5966 La Place Court, Carlsbad, CA 92008
(the "BUZZTIME").
RECITALS
A. BUZZTIME desires to license to NTN the elements of its core proprietary
technologies, trademarks and content, as well as Improvements thereto,
as necessary for the distribution of the BUZZTIME Content by NTN to the
Commercial Market.
B. BUZZTIME is in the business of developing and producing content and
technology for distribution by: (1) NTN to the Commercial Market (as
hereinafter defined); and (2) BUZZTIME to the Consumer Market (as
hereinafter defined).
C. NTN desires to license to BUZZTIME the elements of the NTN proprietary
technologies, trademarks and Content as necessary for distribution of
the BUZZTIME Content by BUZZTIME to the Consumer Market and for purpose
of enabling BUZZTIME to furnish its core proprietary technologies,
trademarks and content to NTN.
D. Each of NTN and BUZZTIME desires to promote the other Party and its
respective products and service offerings via various media.
E. Each of NTN and BUZZTIME desires to set forth their respective rights,
duties and obligations in this Licensing and Marketing Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Parties hereto, intending to be legally bound hereby,
agree as follows:
ARTICLE 1: DEFINITIONS
THE FOLLOWING TERMS WHEN USED IN THIS LICENSING AND MARKETING AGREEMENT, WHETHER
SINGULAR OR PLURAL, SHALL (UNLESS EXPRESSLY PROVIDED HEREIN OR UNLESS THE
CONTEXT OTHERWISE REQUIRES) HAVE THE FOLLOWING RESPECTIVE MEANINGS:
1.1 "AFFILIATE" means any person or entity in which either Party or any
owner, majority shareholder, officer or director of either Party has
any direct beneficial or ownership interest or is a joint venture
partner.
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1.2 "BUZZTIME BUSINESS" means that business conducted by BUZZTIME, which
includes distribution of BUZZTIME Content to the Consumer Market, and
specifically excludes the distribution of BUZZTIME Content to the
Commercial Market.
1.3 "BUZZTIME CONTENT" means all Content (other than advertising Content)
owned by or licensed to BUZZTIME (or any of its Affiliates) and used in
the BUZZTIME Business.
1.4 "BUZZTIME CONTENT LICENSE" means the license granted in Article 2.3.
1.5 "BUZZTIME MARKS" means all present and future trademarks and service
marks owned by or licensed to BUZZTIME and used in the BUZZTIME
Business.
1.6 "BUZZTIME PLAYER DATA" means personal player information and data
captured by BUZZTIME.
1.7 "BUZZTIME PREMIUM GAMES" means games that utilize original content that
has not been previously provisioned for, or made available to players
as part of, any BUZZTIME game.
1.8 "BUZZTIME TECHNOLOGIES" means those portions of the following
Technology that stores, organizes, manipulates, provides and otherwise
exploits trivia questions and answers (known as the "trivia backend")
and database Technology, to the extent that either of the foregoing
Technologies are required or useful to distribute, exploit and support
the BUZZTIME Content on the NTN Network.
1.9 "BUZZTIME TECHNOLOGIES LICENSE" means the License granted in Article
2.1, as depicted in Schedule "A".
1.10 "BUZZTIME TRADEMARK LICENSE" means the License granted in Article 2.2.
1.11 "COMMERCIAL ACTIVATION DATE" means the date the BUZZTIME Premium Games
are first made available to players.
1.12 "COMMERCIAL MARKET" means the market comprised of commercial business
establishments and venues that provide goods and services to multiple
consumers including, but not limited to, restaurants, sports bars,
hotel rooms, hotel lobbies/lounges, hospitals, stadiums, coliseums,
entertainment/hospitality locations, cruise line and recreational
facilities (specifically excluding consumer wireless mobile devices and
content that is also generally intended for use outside of any specific
commercial venue) and other "out-of-home" environments.
1.13 "COMPOSITE MARK" means a trademark that consists of: (i) a BUZZTIME
Mark used in combination with any trademark owned by NTN or licensed to
NTN by any third party; and ii) an NTN Mark used in combination with
any trademark owned by BUZZTIME or licensed to BUZZTIME by any third
party.
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1.14 "CONFIDENTIAL INFORMATION" means all confidential and proprietary
information disclosed by one Party or any of its Affiliates to the
other Party or any of its Affiliates, including: (i) information
disclosed in writing and marked "confidential," (ii) information
disclosed orally and identified as confidential at the time of
disclosure, (iii) information which the receiving Party knows or has
reason to know is confidential, trade secret or proprietary information
of the disclosing Party, (iv) in the case of BUZZTIME, the BUZZTIME
Technologies, whether disclosed to NTN on, before or after the date of
this Licensing and Marketing Agreement; and (iv) in the case of NTN,
the NTN Technologies, whether disclosed to BUZZTIME on, before or after
the date of this Licensing and Marketing Agreement.
1.15 "CONSUMER MARKET" means the consumer market comprised of Internet and
online services, interactive television, mobile telephones, consumer
wireless networks, hand-held devices and other consumer platforms
available to, or accessible by, the general public, but specifically
excluding the Commercial Market.
1.16 "CONTENT" means any information or data in any format, whether or not
interactive in nature, including graphics and text, other than the
BUZZTIME Technologies and the NTN Technologies and excluding player
data, Usage Data, and advertising.
1.17 "DERIVATIVE WORKS" means a work based upon one or more preexisting
works, such as a translation, abridgment, condensation, or any other
form in which a work may be recast, transformed, or adapted, or a work
consisting of editorial revisions, annotations, elaborations, or other
modifications which, as a whole, represent an original work of
authorship; and any "compilation" which is a work formed by the
collection and assembling of preexisting materials or of data that are
selected, coordinated, or arranged in such a way that the resulting
work as a whole constitutes an original work of authorship, and
including collective works.
1.18 "IMPROVEMENTS" means bug fixes, error corrections, improvements,
modifications, enhancements, additions, extensions, new releases, new
versions, upgrades, updates, Derivative Works, next generation
replacement products, translations and localizations
(a) of the BUZZTIME Technologies developed, owned or acquired by
or licensed to BUZZTIME; or
(b) of the NTN Technologies developed, owned, or acquired by or
licensed to NTN.
1.19 "INTELLECTUAL PROPERTY RIGHTS" means all patent rights, copyright
rights (including, but not limited to, rights in music and audiovisual
works), trademark rights, trade secret rights, design rights and
confidentiality rights and any other intellectual property rights
recognized by the law of each applicable jurisdiction.
1.20 "NTN BUSINESS" means the business conducted by NTN, which includes the
distribution of Content to the Commercial Market, and specifically
excluding the distribution of BUZZTIME Content to the Consumer Market.
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1.21 "NTN CONTENT" means all Content (other than advertising Content) owned
by or licensed to NTN and used in the NTN Business.
1.22 "NTN MARKS" means all present and future trademarks and service marks
owned by or licensed to NTN and used in the NTN Business.
1.23 "NTN NETWORK" means NTN's interactive television network, featuring
sports, trivia and various interactive games which are broadcast to the
Commercial Market.
1.24 "NTN PLAYER DATA" means personal player information and data collected
by NTN, such as that data included in NTN's Players Plus(R) database.
1.25 "NTN TECHNOLOGIES" means those portions of the following Technology in
which NTN has any right, title or interest: Technology (known as
Broadcast Director Software Referee) that enables the recording of live
event data in a form capable of being broadcast over the NTN Network.
1.26 "NTN TECHNOLOGIES LICENSE" means the License granted in Article 2.5, as
depicted in Schedule "A".
1.27 "NTN TRADEMARK LICENSE" means the License granted in Article 2.4.
1.28 "PARTY" means a party to this Licensing and Marketing Agreement.
1.29 "STANDARD NTN CONTENT FORMAT" means the data format of the BUZZTIME
Content delivered to NTN for use in the NTN Business as set forth in
Schedule "B".
1.30 SUPPORT SERVICES" means the services to be provided by BUZZTIME as
specified in Articles 4.5 and 4.6.
1.31 "TECHNOLOGY" means hardware, software (including source code, object
code, and executable code), firmware, ideas, algorithms, tools,
techniques, methods, processes, trade secrets, information, technical
data, technical databases, technical data compilations and collections
(but in any case excluding trivia questions and databases thereof),
documentation, designs, inventions (whether or not patentable),
improvements, enhancements and technology.
1.32 "TERM" is defined in Article 12.1.
1.33 "USAGE DATA" means information and data captured as a result of use of
the BUZZTIME Content as distributed by NTN.
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ARTICLE 2: GRANT OF LICENSES
2.1 BUZZTIME Technologies License. BUZZTIME hereby grants to NTN, subject
to any contractual restrictions governing the usage of any BUZZTIME
Technologies imposed by pre-existing agreements with third parties
(other than Affiliates), a non-transferable (except as expressly
permitted by this Licensing and Marketing Agreement), exclusive (as
against third parties and as against BUZZTIME), perpetual, worldwide,
royalty-free License to use, customize and exploit the BUZZTIME
Technologies and to sublicense only to the extent necessary to enable
the distribution by NTN of the BUZZTIME Content to the Commercial
Market.
2.2 BUZZTIME Trademark License.
(a) Grant of Rights. BUZZTIME hereby grants to NTN an exclusive,
non-transferable (except as expressly permitted in this
License and Marketing Agreement), perpetual, worldwide,
royalty-free license:
(i) to use the BUZZTIME Marks (either alone or as part of
any Composite Mark) in connection with distribution
of the BUZZTIME Content by NTN to the Commercial
Market; and
(ii) to apply jointly with BUZZTIME for registration of
the Composite Marks for use by NTN in the NTN
Business, but NTN will not otherwise register or seek
protection for any BUZZTIME Marks or Composite Marks,
without the prior written consent of BUZZTIME, which
consent may be withheld in BUZZTIME'S sole discretion
provided, that the Trademark License granted under this
Article 2.2(a) is subject to: (i) in the case of BUZZTIME
Marks licensed to BUZZTIME by third parties, any contractual
restrictions governing the usage of such BUZZTIME Marks
imposed by agreements with third parties (other than
Affiliates), and (ii) in the case of BUZZTIME Marks owned by
BUZZTIME, any contractual restrictions governing the usage of
such BUZZTIME Marks imposed by agreements with third parties
(other than Affiliates) existing at the time at which BUZZTIME
obtains ownership of such BUZZTIME Marks. BUZZTIME shall
concurrently with making available the BUZZTIME Marks advise
NTN of any contractual restrictions of the type described in
this Article 2.2(a) that apply to the use of the BUZZTIME
Marks in the NTN Business. The license set forth in Article
2.2(a)(i) is sublicensable only to the extent necessary to
enable the distribution, promotion, marketing and advertising
by NTN of the BUZZTIME Content in and to the Commercial
Market. The license set forth in Article 2.2(a)(ii) is not
sublicensable.
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(b) Use of BUZZTIME Marks. NTN hereby agrees that it shall:
(i) use the BUZZTIME Marks (either alone or as part of
any Composite Mark) in accordance with BUZZTIME'S
then-current trademark guidelines set out in Schedule
"C" as amended from time to time to protect
BUZZTIME'S rights (which such trademark guidelines
shall be consistent with and in no event be more
onerous than those guidelines applicable to
BUZZTIME'S other distributors); provided, that
BUZZTIME shall provide NTN with reasonable (taking
into account the nature of the changes made to the
trademark guidelines and the then-current use of the
BUZZTIME Marks in NTN's Business) notice of any such
change; and
(ii) not do or cause anything to be done that may
adversely affect BUZZTIME's title in the BUZZTIME
Marks or call into question the validity of that
title or the registration of the BUZZTIME Marks.
2.3 BUZZTIME Content License. BUZZTIME hereby grants to NTN, subject to any
contractual restrictions governing the usage of the BUZZTIME Content
imposed by pre-existing agreements with third parties (other than
Affiliates) including, without limitation, any rights of approval
and/or payment of any incremental cost directly attributable to the
distribution of such BUZZTIME Content, a non-transferable (except as
expressly permitted by this Licensing and Marketing Agreement),
perpetual, worldwide, royalty-free License to use, customize (including
but not limited to modification, editing and augmenting) and exploit
BUZZTIME Content created prior to and existing at December 31, 1999
("Pre-Existing Content") as set forth in Schedule "D", along with any
updates made by BUZZTIME to the Pre-existing Content, in the NTN
Business and to sub-License the BUZZTIME Content to the extent
necessary to enable distribution of the BUZZTIME Content by NTN to the
Commercial Market. The license granted herein includes rights to any
and all new BUZZTIME Content created by BUZZTIME during the ordinary
course of business from and after December 31, 1999 ("Additional
BUZZTIME Content"); however, at any time after the initial five (5)
years of the Term, should BUZZTIME elect to terminate the creation and
development of Additional BUZZTIME Content, BUZZTIME shall provide NTN
with twelve (12) months' written notice prior to the effective date of
such termination.
2.4 NTN Trademark License.
(a) Grant of Rights. NTN hereby grants to BUZZTIME a
non-transferable (except as expressly permitted in this
License and Marketing Agreement), worldwide, royalty-free
license for so long as BUZZTIME shall provide Content to NTN
pursuant to the license granted in Article 2.3:
(i) to use the NTN Marks and the Composite Marks in
connection with distribution of the BUZZTIME Content
to, and promotion of NTN by BUZZTIME in, the Consumer
Market;
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(ii) to apply jointly with NTN for registration of the
Composite Marks for use by BUZZTIME in the BUZZTIME
Business, but BUZZTIME will not otherwise register or
seek protection for any NTN Marks or Composite Marks,
without the prior written consent of NTN, which
consent may be withheld in NTN's sole discretion
provided, that the trademark license granted under this
Article 2.4 is subject to: (i) in the case of NTN Marks
licensed to NTN by third parties, any contractual restrictions
governing the usage of such NTN Marks imposed by agreements
with third parties (other than Affiliates), and (ii) in the
case of NTN Marks owned by NTN, any contractual restrictions
governing the usage of such NTN Marks imposed by agreements
with third parties (other than Affiliates) existing at the
time at which NTN obtains ownership of such NTN Marks. NTN
shall concurrently with making available the NTN Marks and
Composite Marks advise BUZZTIME of any contractual
restrictions of the type described in this Article 2.4 that
apply to the use of the NTN Marks or Composite Marks in the
BUZZTIME Business. The license set forth in this Article 2.4
is sublicensable only to the extent necessary to enable the
distribution, promotion, marketing, and advertising by
BUZZTIME of the BUZZTIME Content to the Consumer Market.
(b) Use of NTN Marks. BUZZTIME hereby agrees that it shall:
(i) use the NTN Marks and the Composite Marks in
accordance with NTN'S then-current trademark
guidelines set out in Schedule "E" as amended from
time to time to protect NTN'S rights (which such
trademark guidelines shall be consistent with and in
no event be more onerous than those guidelines
applicable to NTN'S other distributors); provided,
that NTN shall provide BUZZTIME with reasonable
(taking into account the nature of the changes made
to the trademark guidelines and the then-current use
of the NTN Marks and Composite Marks in BUZZTIME'S
Business) notice of any such change; and
(ii) not do or cause anything to be done that may
adversely affect NTN's title in the Composite Marks
or NTN Marks or call into question the validity of
that title or the registration of the Composite Marks
or NTN Marks.
2.5 NTN Technologies License. NTN hereby grants to BUZZTIME, subject to any
contractual restrictions governing the usage of any NTN Technologies
imposed by pre-existing agreements with third parties (other than
Affiliates), a non-transferable (except as expressly permitted by this
Licensing and Marketing Agreement), worldwide, royalty-free license to
use, customize and exploit the NTN Technologies only to the extent
necessary to enable BUZZTIME to fulfill its obligations under this
Licensing and Marketing Agreement for so long as BUZZTIME shall provide
Content to NTN pursuant to the license granted in Article 2.3.
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ARTICLE 3: LICENSED MARKETS AND TERRITORIES
3.1 NTN Market. The Licenses granted to NTN hereunder are limited to the
Commercial Market. NTN is expressly prohibited from providing the
BUZZTIME Content to the Consumer Market. NTN shall not enter into any
agreements with third parties for distribution of the BUZZTIME Content
to the Consumer Market without BUZZTIME's prior written consent, which
consent shall not be unreasonably withheld; BUZZTIME shall respond to
any such request from NTN as soon as practicable. From and after the
Effective Date, NTN will include a provision in any and all agreements
with third parties for licensing of the BUZZTIME Content prohibiting
such third parties from distributing the BUZZTIME Content to the
Consumer Market.
3.2 BUZZTIME Market. The Licenses granted to BUZZTIME hereunder are limited
to the Consumer Market. BUZZTIME is expressly prohibited from providing
the BUZZTIME Content directly to the Commercial Market. BUZZTIME shall
not enter into any agreements with third parties for distribution of
the BUZZTIME Content to the Commercial Market, without NTN's prior
written consent, which consent shall not be unreasonably withheld; NTN
shall respond to any such request from BUZZTIME as soon as practicable,
unless a specific period to time for such response is otherwise agreed
to by NTN in writing. From and after the Effective Date, BUZZTIME will
include a provision in any and all agreements with third parties for
licensing of the BUZZTIME Content prohibiting such third parties from
distributing the BUZZTIME Content to the Commercial Market.
ARTICLE 4: IMPLEMENTATION OF TECHNOLOGIES
4.1 Technology Transfer.
(a) BUZZTIME will as soon as reasonably practicable after
execution of this Licensing and Marketing Agreement deliver
copies of all tangible embodiments of the BUZZTIME
Technologies to NTN to enable NTN to distribute the BUZZTIME
Content and shall concurrently with any such transfer advise
NTN of any contractual restrictions of the type described in
Article 2.1 that apply to the use of the BUZZTIME Technologies
by NTN in the NTN Business.
(b) NTN will as soon as reasonably practicable after execution of
this Licensing and Marketing Agreement deliver copies of all
tangible embodiments of the NTN Technologies to BUZZTIME to
enable BUZZTIME to fulfill its obligation to broadcast live
events to NTN as defined in this Agreement.
4.2 Improvements.
(a) BUZZTIME will provide NTN with a minimum of one (1) year's
notice prior to implementation of any material Improvements to
the BUZZTIME Technologies;
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(b) NTN will provide BUZZTIME with a minimum of one (1) year's
notice prior to implementation of any material Improvements to
the NTN Technologies;
(c) in the event either Party implements any such Improvements
prior to one (1) year from the date of such notice,
(i) BUZZTIME will maintain the BUZZTIME Technologies, as
existing at time such notice is given, to enable NTN
to continue distribution of the BUZZTIME Programs;
(ii) NTN will maintain the NTN Technologies, as existing
at time such notice is given, to enable BUZZTIME to
continue to fulfill its obligation to broadcast live
events to NTN as defined in this Agreement.
(d) the Parties will negotiate in good faith regarding the
transition to material Improvements in the event either Party
is required to incur material costs in connection with
implementation of any such Improvements including, but not
limited to, maintenance of
(i) a modified version of the BUZZTIME Technologies by
BUZZTIME to assist NTN during the transition period;
(ii) a modified version of the NTN Technologies by NTN to
assist BUZZTIME during the transition period;
(e) BUZZTIME shall at all times maintain and support the current
version of the BUZZTIME Technologies in use by NTN during the
Term. Should NTN agree to use an improved version of the
BUZZTIME Technologies, that improved version will become the
new current version for purposes of this Licensing and
Marketing Agreement.
4.3 Account Manager. BUZZTIME shall within ninety (90) days following the
execution of this Licensing and Marketing Agreement appoint an account
manager ("ACCOUNT MANAGER") who shall be dedicated to acting as the
main liaison between BUZZTIME and NTN. BUZZTIME shall ensure that the
Account Manager shall:
(a) keep NTN informed regarding the BUZZTIME Business as such
plans or activities with respect thereto may affect the NTN
Business, including by providing NTN with advance notification
of any: (i) proposed Improvements pursuant to 4.2; (ii) impact
such Improvements may have on the BUZZTIME Programs as
distributed by NTN; (iii) third party software or client
plug-ins under consideration by BUZZTIME for inclusion in the
BUZZTIME Business for which NTN must pay; and (iv) responding
to any further reasonable requests for information made by
NTN;
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(b) communicate NTN's suggestions for Improvements, interests and
any concerns to an appropriate senior person within BUZZTIME.
BUZZTIME will consider in good faith NTN's opinion regarding
the desirability of any proposed modifications suggested by
either Party of the Core Technologies taking into
consideration, inter alia, the cost to BUZZTIME of deployment
of such modification, the deployment of such modification by
NTN in the NTN Business and the need for BUZZTIME to deploy
such modification to maintain BUZZTIME's competitiveness;
(c) advise NTN of and provide NTN with access to relevant web
sites and other relevant communications vehicles generally
available to BUZZTIME'S distributors for the purpose of
communication between BUZZTIME and NTN and the dissemination
to and ready access by NTN of support service information; and
(d) invite NTN to attend all relevant conferences and seminars
organized by BUZZTIME that are open to its distribution
partners and provide NTN with appropriate details of those
events.
4.4 Account Liaison. NTN shall within ninety (90) days following the
execution of this Licensing and Marketing Agreement appoint an account
liaison who shall be the main liaison between NTN and BUZZTIME.
4.5 Support Services. The Parties agree to provide, either themselves or
through any of their Affiliates, for a period to extend the longer of:
i) five (5) years from the Effective Date or ii) until termination of
the obligation of BUZZTIME to provide new BUZZTIME Content per Article
2.3, support services comparable to the support services and service
levels provided by the Parties to their distributors or customers as
part of each Party's Business.
4.6 Support and Maintenance Agreement. As soon as reasonably practicable
following the execution of this Licensing and Marketing Agreement, the
Parties shall negotiate in good faith with to enter into a support and
maintenance agreement to provide support services of the type referred
to in Article 4.5 on such terms and conditions as shall be mutually
agreed upon. Such service level agreement shall include, but is not
limited to:
(a) maintenance and upgrading of the BUZZTIME Programs and
BUZZTIME Technologies, exclusive of development or
customization specific to the NTN Network;
(b) maintenance and upgrading of the NTN Technologies,
(c) each Party to have full rights to utilize and incorporate
Improvements;
(d) maintenance and upgrades to the BUZZTIME Technologies made by
BUZZTIME in the ordinary course of business
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(e) maintenance and upgrades to the NTN Technologies made by NTN
in the ordinary course of business
ARTICLE 5: PROGRAMMING
5.1 Programming. The BUZZTIME Content shall be programmed as follows:
(a) Structure. BUZZTIME will develop and maintain the original
programming existing and in use as of the Effective Date for
distribution by NTN to the Commercial Market; however, NTN
shall determine the "look and feel" of the BUZZTIME Content
for use in the NTN Business.
(b) Content. NTN will program the BUZZTIME Content in its sole
discretion in accordance with the Programming Principles (as
defined below). Nothing in this Licensing and Marketing
Agreement shall be deemed to create any obligation of NTN to
accept or use any BUZZTIME Content.
(c) QB1/Predict the Play Studio Production. BUZZTIME will produce,
in substantially its current form, the program known as
"QB1/Predict the Play" for NTN during the initial five (5)
years of the Term, including through conclusion of the
2005/2006 football season. No fee therefor shall be paid by
NTN during the initial two (2) years of QB1/Predict the Play
production by BUZZTIME. During the three (3) years immediately
subsequent to such two (2) year period, NTN shall pay BUZZTIME
a production fee of $175 per game produced; however, in the
event BUZZTIME produces a QB1/Predict the Play application for
a third party at any time during such three (3) year period,
the production fee payable by NTN to BUZZTIME for QB1/Predict
the Play will be directly offset by any QB1/Predict the Play
production fees collected by BUZZTIME from any such third
party during the course of such production by BUZZTIME for
that third party.
(d) Graphics. Each Party will make available to the other Party
any and all graphics developed by such Party for the BUZZTIME
Content as distributed by NTN to the Commercial Market. Each
Party will retains all right, title and interest to and of any
such graphics provided pursuant to this Article 5.1.
5.2 Acquisition and Use of Content by NTN. NTN:
(a) in its sole discretion and at its sole cost and expense, may
create, author and/or acquire Content for programming to be
distributed by NTN to the Commercial Market including by
developing relationships with third party Content providers;
provided, however, that NTN shall not acquire entertainment
and game content directly from any third party provider during
the initial five (5) years of the Term; rather, NTN shall
extend to BUZZTIME a right of first refusal during such period
to develop relationships directly with any and all third party
entertainment and game content providers for the purpose of
acquiring Content for programming to be distributed by NTN,
and, BUZZTIME, in turn, will provide such content to
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NTN pursuant to the terms of this Licensing and Marketing
Agreement. Any such Content acquired by BUZZTIME for
distribution by NTN pursuant to this Article 5.2 must meet
NTN's programming quality and feature standards, including but
not limited to branding aspects of such Content, as well as
any and all related features and benefits in any form
whatsoever, as determined by NTN in its sole discretion;
(b) shall adhere to the following programming principles
("PROGRAMMING PRINCIPLES") in the usage of all BUZZTIME
Content licensed hereunder:
(i) NTN may modify, edit or augment any BUZZTIME Content
subject to the terms of the BUZZTIME Content License;
(ii) shall comply with all contractual restrictions of the
type described in Article 2.3 applicable to the
BUZZTIME Content and of which NTN is advised pursuant
to Article 5.3(a)(i) hereinbelow;
(iii) NTN shall immediately cease distribution of any
BUZZTIME Content as to which BUZZTIME advises NTN
that BUZZTIME has become aware or has been advised is
in breach or is alleged to be in breach of any
contractual limitations to which such BUZZTIME
Content is subject or which is alleged to infringe
any third party Intellectual Property Rights;
(c) shall use its commercially reasonable efforts so as to
optimize the consumer appeal of the BUZZTIME Content as
distributed by NTN hereunder and BUZZTIME'S image and identity
as it occurs therein;
(d) shall employ, at NTN's sole expense, a content staff member
who may reside at BUZZTIME offices for the purpose of: i)
communicating with the designated Account Manager per Article
4.2; and ii) managing the acquisition and use of the BUZZTIME
Content per the License granted pursuant to Article 2.3;
(e) shall feature BUZZTIME branding with the intent to present
BUZZTIME Content as being owned by BUZZTIME immediately prior
to, during and immediately following each game that features
the BUZZTIME Content, with a portion of such branding to occur
on the BUZZTIME Content screen, as distributed by NTN
hereunder;
(f) shall not, and shall not permit any third parties to,
distribute the BUZZTIME Content to the Consumer Market during
the Term; and
(g) shall not cause any BUZZTIME Premium Games to be released,
directly or by any third party, prior to the Commercial
Activation Date without the prior written approval of
BUZZTIME.
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5.3 Furnishing of BUZZTIME Content. BUZZTIME:
(a) shall deliver copies of all tangible embodiments of the
Pre-existing Content to NTN as soon as reasonably practicable
after execution of this Licensing and Marketing Agreement;
(b) shall cause to be furnished to NTN all BUZZTIME Content in the
Standard NTN Content Format, and shall concurrently therewith
advise NTN of any contractual restrictions of the type
described in Article 2.3 that apply to the use of such
BUZZTIME Content by NTN in the NTN Business;
(c) shall provide NTN with unlimited access to the BUZZTIME
Content database for the purposes of this Agreement subject to
the provisions of Article 2.3;
(d) shall deliver copies of all tangible embodiments of any and
all updates to the BUZZTIME Content to NTN on a quarterly
basis; provided, however, that the obligation to provide
updates shall expire simultaneously with any termination
BUZZTIME's obligation to provide Additional BUZZTIME Content
pursuant to Article 2.3;
(e) shall, after exercise of its right to cease providing new
BUZZTIME Content pursuant to Article 2.3, utilize its
relationships with third party Content providers to
facilitate, on a commercially reasonable basis and pursuant to
Article 5.2 (a), the acquisition by NTN of Content from those
third parties;
(f) shall not, and shall not permit any third parties to,
distribute the BUZZTIME Content to any Commercial Market
during the Term;
(g) shall not cause any BUZZTIME Premium Games to be released,
directly or by any third party, prior to the Commercial
Activation Date of such BUZZTIME Premium Games without the
prior written approval of NTN;
(h) shall advise and obtain NTN's prior written consent with
respect to any incremental cost payable by NTN to any third
party (other than an Affiliate) that is: i) directly
attributable to the use of such BUZZTIME Content in the NTN
Business in the Commercial Market (which NTN shall pay if it
uses such BUZZTIME Content);
(i) shall negotiate in good faith with NTN for development of
exclusive content or customization of the BUZZTIME Content
upon request of NTN, at rates and pursuant to terms as
mutually agreed between the Parties.
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ARTICLE 6: ADVERTISING
6.1 Right to Sell Advertising. NTN has the exclusive right to sell
advertising for insertion in the BUZZTIME Content distributed by NTN to
the Commercial Market; provided, however, in consideration of the
licenses granted and the performance by BUZZTIME hereunder, BUZZTIME
has the right to utilize:
(a) two (2) fifteen second (:15) ad screens per hour of BUZZTIME
programming to be distributed by NTN in connection with the
BUZZTIME Content to the Commercial Market; and
(b) on an "as available" basis (inventory that has not been sold
to third parties) as determined solely by NTN, two (2) fifteen
second (:15) ad screens per hour of BUZZTIME programming to be
distributed by NTN in connection with the BUZZTIME Content to
the Commercial Market,
subject to the terms and conditions of NTN's standard advertising
agreement and payment of production charges by BUZZTIME, if necessary,
pursuant to the then prevailing NTN advertising rate card (no media
placement fee to be paid to NTN). NTN shall make available to BUZZTIME
any and all technology necessary to enable BUZZTIME to undertake
commercially reasonable efforts to produce its own ads for the purposes
of defraying NTN production costs. At any time after the initial six
(6) years of the Term, NTN may elect to terminate BUZZTIME's right to
utilize any or all of the ad screens pursuant to (a) and (b) of Article
6.1, by providing BUZZTIME with twelve (12) months' written notice
prior to the effective date of such termination; provided, however,
that NTN may not terminate for so long as BUZZTIME continues to provide
BUZZTIME Content per Article 2.3. Further, the advertising rights
granted to BUZZTIME under this Article 6 shall terminate simultaneously
with any termination by BUZZTIME of its obligations to provide
Additional BUZZTIME Content to NTN as provided in Article 2.3.
6.2 Use of Advertising Screens. Any and all such advertising screens will
be utilized by BUZZTIME solely for BUZZTIME, its Affiliates and
distribution partners and all advertising content shall relate only to
BUZZTIME, its Affiliates and distribution partners. No single
advertisement under this Article 6.2 may run more than once per hour.
The number of ad screens available to BUZZTIME hereunder may be
increased at any time or from time to time on an "as available" basis
as determined solely by NTN.
6.3 Advertising Leads and Marketing. BUZZTIME and NTN will share
advertising leads and will carefully coordinate their marketing
efforts. All sales of advertising to be inserted in BUZZTIME Content as
distributed by NTN will be made in accordance with an advertising rate
card for BUZZTIME Content to be established by NTN.
6.4 Promotion of NTN by BUZZTIME. BUZZTIME shall utilize its best efforts
to provide promotion of NTN in the Consumer Market.
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ARTICLE 7: USAGE DATA
7.1 Collection and Sharing of Usage Data. Subject to all applicable laws
and regulations, NTN shall own any and all rights to Usage Data, or
other information relating to use of the BUZZTIME Content as
distributed by NTN to the Commercial Market. However, NTN will share
aggregated Usage Data with BUZZTIME from time to time. With NTN's prior
written consent, BUZZTIME may collect information provided by or
relating to users of the BUZZTIME Content as distributed by NTN to the
Commercial Market subject to strict compliance with each of the
BUZZTIME and NTN privacy policies. Upon request, BUZZTIME shall provide
a written description of how it proposes to use Usage Data.
7.2 User Data. BUZZTIME owns all right, title and interest in and to the
BUZZTIME Player Data. NTN owns all right, title and interest in and to
the NTN Player Data. The Parties may share such player data from time
to time during the Term, as mutually agreed.
ARTICLE 8: CONFIDENTIALITY
8.1 Treatment of Confidential Information. Each Party and each of its
respective Affiliates will maintain in confidence the other Party's
Confidential Information and will not disclose, divulge or otherwise
communicate such Confidential Information to any persons other than
their employees with a need to know, or use such Confidential
Information for any purpose, except as otherwise provided or permitted
under the terms of this Licensing and Marketing Agreement and hereby
agrees to exercise reasonable precautions including, without
limitation, use of written agreements to prevent and restrain the
unauthorized disclosure of such Confidential Information by any of its
directors, officers, employees, consultants, subcontractors,
sublicensees or agents. The provisions of this Article 8 will survive
termination of this Licensing and Marketing Agreement.
8.2 Release from Restrictions. The provisions of Article 8.1 will not apply
to any Confidential Information disclosed pursuant to this Licensing
and Marketing Agreement or otherwise which:
(a) was known or used by the receiving Party or its Affiliates
(unless known on account of research or development done by or
on behalf of the disclosing Party and distributed to the
receiving Party or its Affiliates pursuant to confidentiality
restrictions) prior to its date of disclosure to the receiving
Party, as evidenced by the written records of the receiving
Party or its Affiliates;
(b) either before or after the date of the disclosure to the
receiving Party, is lawfully disclosed without restriction to
the receiving Party or its Affiliates by a third party (other
than an Affiliate) rightfully in possession of the
Confidential Information (but only to the extent of the rights
received from and limitations imposed by such third party);
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(c) either before or after the date of the disclosure to the
receiving Party, becomes published or available to the public
through no fault or omission on the part of the receiving
Party or its Affiliates;
(d) is required to be disclosed by the receiving Party or its
Affiliates to comply with applicable laws, to defend or
prosecute litigation or to comply with governmental
regulations, provided that the receiving Party provides, if
possible, prior written notice of such disclosure to the other
Party and takes reasonable and lawful actions to minimize the
degree of such disclosure;
(e) is required to be disclosed by the receiving Party or its
Affiliates to comply with applicable laws, or the rules of any
regulatory authority or stock exchange relevant to that Party
or its Affiliates (but the Receiving Party or its Affiliates
will limit the disclosure as far as possible);
(f) is independently developed by the receiving Party (other than
on account of research or development done on behalf of the
disclosing Party pursuant to confidentiality restrictions)
without reference to the Confidential Information, as
evidenced by written records; or
(g) as part of normal reporting or review procedure to parent
companies, auditors, attorneys, investors and potential
investors, provided that such parent company, auditors,
attorneys, investors and potential investors are bound by
substantially similar obligations of confidentiality
substantially similar to this Article 8.
ARTICLE 9: OWNERSHIP AND PROPRIETARY RIGHTS
9.1 Ownership.
(a) BUZZTIME Property. The BUZZTIME Technologies, the BUZZTIME
Marks and any and all goodwill inuring to the BUZZTIME Marks
(including when used as part of a Composite Mark), the
BUZZTIME Content and BUZZTIME's and its Affiliates'
Confidential Information (collectively, the "BUZZTIME
PROPERTY") are and will remain the sole and exclusive property
of BUZZTIME, whether separate or combined with any other
property (subject to the exclusions in relation to the
Composite Marks, as referred to above). BUZZTIME's ownership
rights under this Article 9.1 will include, but not be limited
to all Intellectual Property Rights held by BUZZTIME in the
BUZZTIME Property.
(b) Company Material; Derivative Works. All modifications to, and
Derivative Works of the BUZZTIME Technologies, BUZZTIME Marks
or BUZZTIME Content created by NTN based upon such
Intellectual Property Rights of BUZZTIME will be owned by
BUZZTIME as a work-made-for-hire (and all right, title and
interest therein is hereby irrevocably assigned by NTN to
BUZZTIME) and licensed to NTN as part of the Licenses granted
under Article 2. All other material (and also excluding the
Composite Marks) in which there are
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Intellectual Property Rights developed by NTN will be owned by
NTN ("NTN MATERIAL"). NTN hereby grants BUZZTIME a perpetual,
worldwide, non-exclusive, non-transferable (except as
permitted by this Licensing and Marketing Agreement) license
to use the NTN Materials (which license to use shall be
royalty-free) and to sublicense the NTN Materials only to
licensees of the BUZZTIME Technologies for a royalty to be
negotiated in good faith by each of NTN and BUZZTIME,
provided, that BUZZTIME shall not use any NTN Material either
within or outside of the BUZZTIME Business until such royalty
shall have been agreed upon.
(c) Use of BUZZTIME Property. NTN will not, except to the extent
permitted by applicable laws and notwithstanding any provision
to the contrary, reverse engineer, decompile, disassemble, or
otherwise attempt to reconstruct or discover any source code
or algorithms of the BUZZTIME Technologies not provided to NTN
in source code form. NTN will not delete or in any manner
alter the Intellectual Property Rights notices (e.g.,(C),(TM),
etc.) of BUZZTIME. NTN will reproduce and display BUZZTIME's
Intellectual Property Rights notices where appropriate and
pursuant to Schedule "C". NTN will use its commercially
reasonable efforts (but will not commence proceedings except
at the direction and cost of BUZZTIME) to protect BUZZTIME's
Intellectual Property Rights and will report promptly to
BUZZTIME any actual or suspected infringement or
misappropriation of such rights of which it becomes aware.
(d) NTN Property. The NTN Marks and any and all goodwill inuring
to the NTN Marks (including when used as part of a Composite
Mark), and NTN's and its Affiliates' Confidential Information
(collectively, the "NTN PROPERTY") are and will remain the
sole and exclusive property of NTN, whether separate or
combined with any other property (subject to the exclusions in
relation to the Composite Marks, as referred to above). NTN's
ownership rights under this Article 9.1 will include, but not
be limited to all Intellectual Property Rights held by NTN in
the NTN Property.
(e) Use of NTN Property, NTN Material and NTN Marks. BUZZTIME will
not, except to the extent permitted by applicable laws and
notwithstanding any provision to the contrary, reverse
engineer, decompile, disassemble, or otherwise attempt to
reconstruct or discover any source code or algorithms of the
NTN Property or NTN Material not provided by NTN to BUZZTIME
in source code form. BUZZTIME will not delete or in any manner
alter the Intellectual Property Rights notices (e.g.,(C),(TM),
etc.) of NTN. BUZZTIME will reproduce and display NTN's
Intellectual Property Rights notices where appropriate and
pursuant to Schedule "E". BUZZTIME will use its commercially
reasonable efforts (but will not commence proceedings except
at the direction and cost of NTN) to protect NTN's
Intellectual Property Rights and will report promptly to NTN
any actual or suspected infringement or misappropriation of
such rights of which it becomes aware.
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9.2 Third Party Infringement. Each Party hereby reserves the sole and
exclusive right at its discretion to assert claims against third
parties for infringement or misappropriation of its Intellectual
Property Rights.
ARTICLE 10: REPRESENTATIONS AND WARRANTIES; FURTHER
OBLIGATIONS; LIMITATION ON LIABILITY
10.1 Representations and Warranties of BUZZTIME. BUZZTIME represents,
warrants and covenants to NTN that:
(a) BUZZTIME has the power and authority to enter into this
Licensing and Marketing Agreement and to fully perform its
obligations hereunder, including the right to grant the
Licenses on the terms set out in this Licensing and Marketing
Agreement;
(b) to the best of BUZZTIME's knowledge, BUZZTIME is not under any
contractual or other legal obligation that will in any way
interfere with the full, prompt and complete performance of
its obligations pursuant to this Licensing and Marketing
Agreement;
(c) BUZZTIME has made application for trademark registration for
the following trademarks: BUZZTIME(TM), PREDICT THE PLAY(TM),
THE WORLD IS YOUR GAME SHOW(TM), and such trademarks are not
subject to any contractual restrictions on their use in the
BUZZTIME Business;
(d) use of the BUZZTIME Marks in accordance with the Trademark
License will not infringe any trademarks of a third party;
(e) use of the BUZZTIME Technologies (including, but not limited
to, all Software involved) and all documentation submitted by
BUZZTIME to NTN in accordance with the BUZZTIME Technologies
License:
(i) will not infringe the Intellectual Property Rights
(other than trademarks or patent rights) of any
person; and
(ii) to the best of BUZZTIME's knowledge will not infringe
any patent rights or trademark rights of any person;
(f) use of the BUZZTIME Content:
(i) subject to (ii) below, will not infringe the
Intellectual Property Rights of any person; and
(ii) to the best of BUZZTIME's knowledge will not, to the
extent that it is owned by any third party (other
than an Affiliate), infringe the Intellectual
Property Rights of any person; and
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(g) to the best of BUZZTIME's knowledge the BUZZTIME Technologies
and the BUZZTIME Content will not contain any Foreign Elements
(defined below). "FOREIGN ELEMENTS" means: any viruses, worms,
logic bombs, security measures or other elements in the
BUZZTIME Technologies and the BUZZTIME Content which have the
capacity to change software or data present therein or
associated therewith, or which have the capacity to affect or
prevent the use thereof in any way. BUZZTIME will use
up-to-date, commercially reasonable virus scanning programs
and the like to attempt to detect and remove any Foreign
Elements before providing the BUZZTIME Technologies and the
BUZZTIME Content to NTN.
10.2 Representations and Warranties of NTN. NTN hereby represents, warrants
and covenants to BUZZTIME that:
(a) NTN has the power and authority to enter into this Licensing
and Marketing Agreement and to fully perform its obligations
hereunder, including the right to grant the Trademark License
on the terms set out in this Licensing and Marketing
Agreement;
(b) it is not under any contractual or other legal obligation
which will in any way interfere with the full, prompt and
complete performance of its obligations pursuant to this
Licensing and Marketing Agreement;
(c) the use by NTN, BUZZTIME or any of their sub-licensees of any
Derivative Works developed by NTN based on the BUZZTIME
Technologies, excluding any and all third party contribution:
(i) will not infringe the copyright of any person; and
(ii) to the best of NTN's knowledge will not infringe any
other Intellectual Property Rights (other than
trademarks or copyrights) of any person; and
(d) the use of the Composite Marks by BUZZTIME will not infringe
any trademarks of a third party registered for use in the
United States.
10.3 Exclusion on Liability. Except where to do so would contravene any law
or make any part of this clause void or unenforceable, each Party
excludes liability to the other Party for any indirect, incidental,
special or consequential loss (such as, but not limited to, loss of
profits or revenues but not excluding damage to or loss of personal
property), whether arising in contract, tort (including negligence) or
otherwise that the other Party suffers or incurs in connection with
this Licensing and Marketing Agreement.
10.4 Fraudulent Actions. The limitations on liability and damages set out in
Article 10.3 apply to all causes of action that may be asserted
hereunder, other than a cause of action resulting from another Party's
fraudulent actions, whether sounding in breach of contract, breach of
warranty, tort, product liability, negligence or otherwise.
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10.5 Replacement of Infringing Material. In the event that a third party
makes a claim or commences proceedings against BUZZTIME or NTN or any
Affiliates of either Party claiming that any of the BUZZTIME
Technologies or the BUZZTIME Content (together `MATERIAL') infringes
the Intellectual Property Rights of any person and BUZZTIME reasonably
believes such infringement claim may be valid, then BUZZTIME shall use
reasonable commercial efforts to do any one or more of the following:
(a) modify the infringing Material so that the use of the Material
ceases to infringe the rights of that person;
(b) procure promptly for NTN and NTN's Affiliates the right to use
the infringing Material free of any claim by such person for
liability for infringement; or
(c) replace the infringing Material with non-infringing Material
on terms no more onerous than those permissible in this
Licensing and Marketing Agreement.
10.6 Limitation on Warranties. The express warranties of BUZZTIME and NTN
made in this Licensing and Marketing agreement are the only warranties
made by the Parties regarding the subject matter of this Licensing and
Marketing Agreement. To the extent permitted by law, each of BUZZTIME
and NTN expressly disclaim any and all warranties, representations,
promises, conditions or undertakings (including those of
merchantability and fitness for purpose), whether arising by statute,
operation of law, usage of trade, courses of dealing or otherwise. This
is an agreement for the provision of services. The parties expressly
disclaim any applicability of the Uniform Commercial Code and the
United Nations Convention on International Sale of Goods.
10.7 Non-solicitation of Employees. Neither Party shall, during the Term,
directly or indirectly solicit, employ, offer to employ, or engage as a
consultant, any employee or consultant of the other Party without that
other Party's prior written consent.
ARTICLE 11: INDEMNITIES; LIMITATION ON CONSEQUENTIAL DAMAGES
11.1 Indemnification by BUZZTIME. BUZZTIME will defend, indemnify and hold
harmless NTN, its Affiliates and their respective officers, directors,
employees and agents from all liabilities, damages, costs and expenses
(including, without limitation, reasonable outside counsel fees and
expenses) incurred in connection with any third party claim against NTN
relating to breaches by BUZZTIME of any of its representations or
warranties or any of its obligations hereunder ("THIRD PARTY CLAIM")
provided that such breach of any representation or warranty or any of
its obligations under this Licensing and Marketing Agreement is not
caused by any willful misconduct or gross negligence on the part of
NTN. BUZZTIME'S obligations under this Article 11.1 will constitute
NTN's sole and exclusive remedy (in addition to Article 10.5 if
applicable) in connection with any Third Party Claim, including for any
infringement by the BUZZTIME Technologies, BUZZTIME Marks and BUZZTIME
Content and their use by NTN or third parties.
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11.2 Indemnification by NTN. NTN will defend, indemnify and hold harmless
BUZZTIME, its Affiliates and their respective officers, directors,
employees and agents from all liabilities, damages, costs and expenses
(including without limitation, reasonable outside counsel fees and
expenses) incurred in connection with any third party claim against
BUZZTIME relating to breaches by NTN of any of its representations or
warranties or any of its obligations hereunder (also a "THIRD PARTY
CLAIM") provided that such breach is not caused by any willful
misconduct or gross negligence on the part of BUZZTIME. NTN'S
obligations under this Article 11.2 will constitute BUZZTIME'S sole and
exclusive remedy in connection with any Third Party Claim including for
any infringement of Intellectual Property Rights of third parties by
BUZZTIME.
11.3 Consequential Loss. The exclusion of liability for consequential loss
in Article 10.3 is subject to the following in relation to the
indemnities given in Articles 11.1 and 11.2:
(a) any direct loss suffered by a third party making any Third
Party Claim will not be considered to be consequential loss;
and
(b) if in relation to any Third Party Claim referred to in
Sections 10.1 or 10.2, NTN or BUZZTIME respectively, is
entitled to recover any other form of consequential loss from
any other person in relation to that Third Party Claim
(whether through indemnity, subrogation or otherwise), NTN or
BUZZTIME respectively will remit any recovery received from
such person to the indemnified Party, net of any actual
out-of-pocket costs and expenses incurred by the indemnifying
Party in seeking such recovery; provided, that the percentage
share of the total amount of such costs and expenses deducted
from any such recovery shall not be greater than the
percentage that the amount that is remitted to the indemnified
Party bears to the total recovery of the indemnifying Party
with respect to such Third Party Claim and for which such
costs and expenses were incurred.
11.4 Requirements for Being Indemnified. The Party seeking indemnification
must:
(a) promptly notify the indemnifying Party in writing of any claim
or legal proceeding which gives rise to such right (unless the
indemnifying Party is already aware of the claim or
proceedings);
(b) afford the indemnifying Party the opportunity to participate
in any proceeding, including by selection of its own counsel,
and to control the compromise, settlement, resolution or other
disposition of such claim or proceeding; and
(c) fully cooperate with the indemnifying Party (and the counsel
selected by the indemnifying counsel to defend the matter), at
the indemnifying Party's expense, in such indemnifying Party's
participation in, and control of, any claim or proceeding and
the compromise, settlement, resolution or other disposition of
such claim or proceeding; provided, however, that if such
compromise, settlement, resolution or other disposition could
have an adverse affect on the indemnified Party, then
indemnified Party's consent to such compromise,
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settlement, resolution or other disposition will be required
but will not be unreasonably withheld.
ARTICLE 12: TERMINATION
12.1 Term. The term ("TERM") of this Licensing and Marketing Agreement will
commence on the Effective Date, and unless terminated earlier in
accordance with its terms, will continue for an initial term ("INITIAL
TERM") that will end twenty-five (25) years from the Effective Date.
12.2 Extension of Term. Unless terminated earlier in accordance with its
terms, before the end of the Initial Term, the Parties shall negotiate
in good faith to agree on terms on which they may extend this License
and Marketing Agreement. If by the end of the Initial Term, the
Parties:
(a) have agreed on terms, this License and Marketing Agreement
will be extended on the terms agreed; or
(b) have not agreed on terms, this License and Marketing Agreement
will be extended for a first extension period of six (6)
months during which the Parties will continue to negotiate in
good faith to agree on terms for extension. If at the end of
that first extension period the Parties have not agreed on
terms, this License and Marketing Agreement will then be
extended for a second extension period of twelve (12) months.
12.3 Damages on Expiration or Termination Other Than For Cause. If this
Licensing and Marketing Agreement is terminated in accordance with its
terms, neither Party will be liable to the other for damages of any
kind under this Licensing and Marketing Agreement upon its termination
arising out of the fact of termination itself (except if the Licensing
and Marketing Agreement has been wrongfully terminated). Each Party
waives any right it may have to receive any compensation or reparations
under the law of any jurisdiction in the event of such termination. For
the avoidance of doubt, nothing in this Article 12.3 prevents a Party
from claiming damages or seeking any other remedy available to that
Party in relation to the breach or event that gave rise to the right to
terminate this Licensing and Marketing Agreement in accordance with its
terms.
12.4 Specific Performance; Injunctive Relief. The Parties acknowledge and
agree that any breach of either of the Parties' obligations regarding
Intellectual Property Rights, trademarks, service marks or trade names
and/or confidentiality would cause or threaten to cause irreparable
harm and significant injury which would be difficult to ascertain and
which could not be remedied by the payment of damages alone.
Accordingly, NTN and BUZZTIME agree that in the event of any such
breach or threatened breach, the non-breaching Party will be entitled
to seek preliminary and permanent injunctive relief and other equitable
relief in addition to its other available legal remedies.
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12.5 Termination for Cause. This Agreement may be terminated immediately
under any of the following conditions:
(a) By either party if the other party shall be declared insolvent
or bankrupt;
(b) By either party if a petition is filed in any court to declare
the other party bankrupt or for a reorganization under Title
11, U.S. Code or any similar federal or state law for the
relief of debtors and such petition is not dismissed in ninety
(90) days or if any receiver, trustee, assignee, liquidator or
other similar official under any such law is appointed for the
other party;
(c) By either party if the other party does not pay, in full, any
payments due the first party within one-hundred fifty (150)
days from the date that such payments are due (the running of
such limitations period to be suspended during the procedure
under Article 14.1 and during the pendency of any litigation
or arbitration); or
(d) By either party if the other party otherwise materially
breaches the terms of this Agreement (except as regards
matters covered by the preceding clause (c)), and such breach
is not cured within ninety (90) days after written notice of
such breach is given by the aggrieved party (the running of
such limitations period to be suspended during the procedure
under Article 14.1 and during the pendency of any litigation
or arbitration).
12.6 Effect of Termination. If this Agreement is terminated other than as a
result of a material breach of this Agreement, the Parties agree to
cooperate in order to effect an orderly winding up and termination of
their relationship.
ARTICLE 13: MISCELLANEOUS
13.1 Assignment. Except as otherwise provided in this Licensing and
Marketing Agreement, no Party may assign or transfer any of its rights
or obligations under this Licensing and Marketing Agreement, in whole
or in part, without the written consent of the other Party, except (i)
in connection with the sale of all or substantially all of its assets;
(ii) to the surviving entity in a merger or consolidation; (iii) to an
Affiliate; or (iv) to satisfy a regulatory requirement imposed upon a
Party by a governmental body with appropriate authority; provided,
however, that NTN shall provide BUZZTIME with prior notice of any
proposed assignment of this Licensing and Marketing Agreement and in
the event the proposed assignee is a direct competitor of BUZZTIME,
including assignees pursuant to (i), (ii), or (iii) above, NTN must
obtain BUZZTIME's prior consent to such assignment which consent shall
not be unreasonably withheld.
13.2 Notices. Any notice, direction or other instrument required or
permitted to be given or made hereunder will be in writing and will be
sufficiently given or made if delivered in person to the address set
forth below or if telecopied or sent by other means of recorded
electronic communication confirmed by delivery as soon as practicable
or if dispatched, fees prepaid, by overnight courier.
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Notices to NTN will be addressed as follows:
NTN Communications, Inc.
5966 La Place Court
Carlsbad, CA 92008
Attention: Chief Executive Officer
Fax: (760) 930-1187
with a copy to:
Legal Department
NTN Communications, Inc.
5966 La Place Court
Carlsbad, CA 92008
Fax: (760) 929-5293
Notices to BUZZTIME will be addressed as follows:
BUZZTIME, Inc.
5966 La Place Court
Carlsbad, CA 92008
Attention: President
Fax: (760) 930-1187
with a copy to:
Legal Department
BUZZTIME, Inc.
5966 La Place Court
Carlsbad, CA 92008
Fax: (760) 929-5293
Any notice, direction or other communication so given or made will be
deemed to have been given or made and to have been received on the day
of delivery, if delivered, or on the day of sending if sent by
telecopier or other means of recorded electronic communications
(provided such day of delivery or sending is a business day and, if
not, then on the first business day thereafter). Either Party hereto
may change its address for notice to the other Party by notice given in
the manner aforesaid.
13.3 Governing Law. This Licensing and Marketing Agreement and the rights
and liabilities of the Parties hereunder, shall be governed and
construed in accordance with the laws of the State of California,
without reference to any conflicts of law provisions and each of the
Parties hereto hereby irrevocably submits for all purposes in
connection with this Licensing and Marketing Agreement to the exclusive
jurisdiction of the courts of the State of California.
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13.4 Captions. Captions contained in this Licensing and Marketing Agreement
are inserted only as a matter of convenience and in no way define,
limit, extend or describe the scope of this Licensing and Marketing
Agreement or the intent of any provision hereof.
13.5 Public Announcements. No Party shall be entitled to make or permit or
authorize the making of any press release or other public statement or
disclosure concerning this Licensing and Marketing Agreement without
the prior written consent of the other Party except as otherwise may be
required by law or the rules of any regulatory authority or stock
exchange relevant to that Party or its Affiliates and upon the advice
of such Party's legal counsel (but each Party will limit any such
required disclosure as far as possible).
13.6 Construction. References in this Licensing and Marketing Agreement to a
statute or statutory instrument include a statute or statutory
instrument amending, consolidating or replacing them, and reference to
a statute include statutory instruments and regulations made pursuant
to it. Whenever the context may require, any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural and vice
versa. This Licensing and Marketing Agreement has been negotiated by
the Parties hereto, each of which has been independently represented by
counsel and shall be interpreted in accordance with its terms without
any strict construction for or against any Party.
13.7 Counterparts. This Licensing and Marketing Agreement may be signed in
counterparts that together will be deemed to constitute one valid and
binding document with effect from the date the last of the counterpart
copies is signed and returned in accordance with the delivery
provisions set forth in Article 13.2 and delivery of the counterparts
may be effected by means of facsimile transmission.
13.8 Compliance with Law. Each Party agrees to comply with all applicable
laws, rules, and regulations in connection with its activities under
this Licensing and Marketing Agreement, including but not limited to
complying with all laws, rules, and regulations applicable to
advertising and other promotional content.
13.9 Force Majeure. Notwithstanding any other provision in this Licensing
and Marketing Agreement to the contrary, no Party will have any
liability to the other Parties with respect to its failure to perform
its obligations under this Licensing and Marketing Agreement, except
for the payment of amounts due, if such failure is due to force
majeure, including, without limitation, any of the following events:
(i) the failure of any equipment or software under the control of a
person, firm or entity (other than an Affiliate); (ii) fire, flood,
earthquake, labor dispute, law or government regulation; or (iii) any
other cause beyond the reasonable control of such Party. In any such
case, the Parties' time for performance under this Licensing and
Marketing Agreement and the term hereof, to the extent affected by any
of the foregoing, will be correspondingly extended.
13.10 Survival. The following Articles of this Licensing and Marketing
Agreement will survive its termination or expiration: Article 8
(Confidentiality), Article 9 (Ownership
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and Proprietary Rights), Article 10.3 (Exclusion on Liability), Article
11 (Indemnities; Consequential Damages), Article 12.6 (Effect of
Termination), and Article 13 (Miscellaneous).
13.11 Waivers; Reservation of Rights and Remedies. No course of dealing
between the Parties will operate as a waiver of the Parties' rights
under this Licensing and Marketing Agreement. No delay or omission on
the part of a Party in exercising any right under this Licensing and
Marketing Agreement will operate as a waiver of such right or any other
right hereunder. No waiver will be binding unless it is in writing and
signed by an authorized signatory of the waiving Party. A waiver by a
Party in any instance of any of the terms or conditions of this
Licensing and Marketing Agreement or of any breach of this Licensing
and Marketing Agreement will not constitute a waiver of such terms or
conditions in the future or a waiver of any subsequent breach hereof.
All remedies, rights, undertakings, obligations and agreements
hereunder will be cumulative, and none of them will be in limitation of
any other remedy, right, undertaking, obligation or agreement of a
Party.
13.12 Severability. In case any one or more of the terms contained in this
Licensing and Marketing Agreement is found to be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability
of the remaining terms will not in any way be affected or impaired
thereby. The Parties will endeavor in good faith negotiations to
replace the invalid, illegal or unenforceable terms with valid terms
the economic effect of which comes as close as possible to that of the
invalid, illegal or unenforceable terms.
13.13 Entire Agreement; Modifications. This Licensing and Marketing Agreement
contains the entire understanding of the Parties relating to the
subject matter hereof and supersedes all prior agreements, whether oral
or written, regarding such subject matter. This Licensing and Marketing
Agreement may only be modified by a writing executed by both Parties.
ARTICLE 14: DISPUTE RESOLUTION
14.1 Dispute Resolution. If a dispute arises between the Parties out of or
under or in relation to the subject matter of this Licensing and
Marketing Agreement ("DISPUTE"), a Party may not commence any court or
arbitration proceedings relating to that Dispute (except as provided in
Article 12.4 if applicable) unless it has first complied with the
procedure set out in paragraphs (a) to (g) below:
(a) a Party claiming that a Dispute has arisen must give written
notice ("NOTICE") to the other Party specifying the nature of
the Dispute;
(b) each Party receiving the Notice shall respond in writing to
the Notice indicating its views on the Dispute and whether it
accepts or rejects part or all of the claims contained in the
Notice and its reasons for doing so (the "RESPONSE"). The
Response may include a without prejudice offer of settlement
and shall be served on the Party issuing the Notice and all
other Parties to the Dispute within 14 days of service of the
Notice unless the Dispute is resolved prior to that date;
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(c) if the Dispute has not been resolved within 21 days of service
of the Notice then the Parties shall refer the Dispute to the
chief executive officer of each Party who shall meet promptly
and endeavor to resolve the Dispute;
(d) if the Dispute has not been resolved within 28 days of service
of the Notice then the Dispute shall be referred to mediation
by notice in writing by one Party to the other Parties (the
"MEDIATION NOTICE"), such mediation to be conducted in
accordance with the provisions of paragraph (e);
(e) the Parties shall agree within 7 days of service of the
Mediation Notice on the identity of the mediator and the terms
of his or her appointment and the rules and procedures to be
adopted for the mediation;
(f) the mediation will be commenced within thirty (30) days of
appointment of the mediator;
(g) the Parties acknowledge that the purpose of any exchange of
information or documents or the making of any offer of
settlement pursuant to paragraphs (b) to (e) above is to
attempt to settle the Dispute between the Parties and is not
to be used for any purpose other than attempting to resolve
the Dispute, and in particular, shall not, unless both/all
Parties consent, be admissible in any court or arbitration
proceedings; and
(h) this Article 14.1 shall not apply where a Party seeks
interlocutory or injunctive relief.
IN WITNESS WHEREOF, the undersigned have each executed or caused this
Licensing and Marketing Agreement to be executed as of the date and year first
above written.
NTN COMMUNICATIONS, INC., a Delaware corporation
By: /s/ Stanley B. Kinsey
--------------------------------------------
Stanley B. Kinsey
Chief Executive Officer
BUZZTIME, INC., a Delaware corporation
By: /s/ V. Tyrone Lam
--------------------------------------------
V. Tyrone Lam
President
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SCHEDULE A
CROSS-LICENSING OF
BUZZTIME TECHNOLOGIES
AND NTN TECHNOLOGIES
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SCHEDULE B
STANDARD NTN CONTENT FORMAT
To be provided.
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SCHEDULE C
BUZZTIME INTELLECTUAL PROPERTY GUIDELINES
NTN shall only display or use the BUZZTIME Marks in the form and manner as
specifically approved by BUZZTIME in writing. NTN shall cause to be irremovably
and legibly printed or affixed in a clearly visible location approved by
BUZZTIME the following:
i) Trademark notices as directed and specified by BUZZTIME, including a
legend indicating that the BUZZTIME Marks are trademarks of BUZZTIME,
Inc. and are being used under license from BUZZTIME;
ii) Copyright notices as directed by BUZZTIME; and
iii) All other notices reasonably required by BUZZTIME to protect the
interests of BUZZTIME.
NTN will not use any trademark or copyright notices in connection with the
BUZZTIME Marks that conflict with, negate or cause confusion with any notices
required herein. NTN will not use the BUZZTIME Marks on any business sign,
business card, invoice, sales sheet, brochure, catalogue or other form, or as
part of NTN's business except as authorized by BUZZTIME in writing prior to any
such usage.
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SCHEDULE D
BUZZTIME CONTENT(1)
At December 31, 1999
TRIVIA GAME SHOW LIBRARY INTERACTIVE PLAY-ALONG SPORTS GAMES
- ------------------------ -----------------------------------
PREMIUM TRIVIA GAMES: QB1(R)
fling(TM) Hoops(R)
Passport(TM) Predict the Play(TM)applications
Playback(TM) Brackets(TM)
Showdown(R) Football Challenge(TM)
SportsIQ(TM) Survivor(TM)
SportsTriviaChallenge(R) Uppercut(R)
Spotlight(TM)
Glory Daze(TM)
TRIVIA GAMES: INTERACTIVE POLLING APPLICATIONS:
BrainBuster(R) Awards Shows
Countdown(R) Play-Along Game Shows (Paranoia, Decades)
Topix(TM) Viewer Polling
Wipeout(TM) Ad Polls (viewers voting for favorite ads)
Nightside(R)
SportsTrivia(R)
Retroactive(TM)
Football Weekend Roundup(TM) DATA FEEDS:
Abused News(R) Sports Data Feeds
Appeteasers(TM) News Data Feeds
Jukebox(TM) Business Data Feeds
Triviaoke(R)
Undercover(R)
Viewer's Revue(R)
(1) Includes all formats, text, graphics, related software and applicable
copyrights.
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SCHEDULE E
NTN INTELLECTUAL PROPERTY GUIDELINES
BUZZTIME shall only display or use the NTN Marks in the form and manner as
specifically approved by NTN in writing. BUZZTIME shall cause to be irremovably
and legibly printed or affixed in a clearly visible location approved by NTN the
following:
i) Trademark notices as directed and specified by NTN, including a legend
indicating that the NTN Marks are trademarks of NTN Communications,
Inc. and are being used under license from NTN;
ii) Copyright notices as directed by NTN; and
iii) All other notices reasonably required by NTN to protect the interests
of NTN.
BUZZTIME will not use any trademark or copyright notices in connection with the
NTN Marks that conflict with, negate or cause confusion with any notices
required herein. BUZZTIME will not use the NTN Marks on any business sign,
business card, invoice, sales sheet, brochure, catalogue or other form, or as
part of BUZZTIME's business except as authorized by NTN in writing prior to any
such usage.
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