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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
AMENDMENT NO. 1
[x] Annual Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 [Fee Required]
For the Year Ended December 31, 1993
OR
[ ] Transition Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 [Fee Required]
For the Transition Period from to
Commission file number 1-9118
HOME SHOPPING NETWORK, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 59-2649518
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2501 118TH AVENUE, NORTH, ST. PETERSBURG, FLORIDA
(Address of registrant's principal executive offices)
33716
(Zip Code)
(813) 572-8585
(Registrant's telephone number, including area code)
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
Title of Name of Exchange
Each Class Registered
---------- ----------
Common Stock $.01 Par Value . . . . . . . . . . . . . . . . . NYSE
Securities registered pursuant to Section 12(g) of the Act:
NONE
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes [x]. No [ ].
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
As of March 18, 1994, there were outstanding 73,920,285 shares of
Common Stock (net of shares held in treasury) and 20,000,000 shares of Class B
common stock. The aggregate market value of the voting stock held by
non-affiliates of the registration as of March 18, 1994 was $732,596,579.
APPLICABLE ONLY TO REGISTRANTS INVOLVED IN BANKRUPTCY
PROCEEDINGS DURING THE PRECEDING FIVE YEARS:
Indicate by check mark whether the registrant has filed all documents
and reports required to be filed by Section 12, 13 or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a plan
confirmed by a court.
Yes [ ]. No [ ].
DOCUMENTS INCORPORATED BY REFERENCE:
DOCUMENTS FORM 10-K REFERENCE
--------- -------------------
1993 Annual Report . . . . . . . . . . . . . . . . . . . . Part II Items 5-8
Proxy Statement dated March 29, 1994 . . . . . . . . . . . Part III Items 10-13
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this amendment to be
signed on its behalf by the undersigned, thereunto duly authorized.
May 17, 1994 HOME SHOPPING NETWORK, INC.
By: /s/ Kevin J. McKeon
-----------------------------------
Kevin J. McKeon
Senior Vice President of Accounting
and Finance and Treasurer
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EXHIBIT 10.29
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT. OMITTED PORTIONS OF THE EXHIBIT
HAVE BEEN FILED SEPARATELY WITH THE COMISSION.
MCI SPECIAL CUSTOMER ARRANGEMENT
THIS MCI SPECIAL CUSTOMER ARRANGEMENT (the "Agreement") is Made and
entered into as of the dates set forth below by and between MCI
Telecommunications Corporation ("MCI") and Home Shopping Network, Inc.
("Customer"), effective as of (i) the first day of the first full month after
the tariff governing the offering under this Agreement becomes effective; (ii)
the first day of the month if the tariff effective date is the same date; or
(iii) in the event that MCI determines that applicable law does not require the
filing of a specific tariff implementing this Agreement, such earlier date as
the parties may agree but in no event any date before the date of execution and
delivery of this Agreement by Customer to MCI (such date is hereinafter
referred to as the "Effective Date").
WITNESSETH:
WHEREAS, Customer is desirous of receiving telecommunications services
from MCI and MCI is desirous of providing said services to Customer, pursuant
to the terms and conditions more particularly described herein;
NOW, THEREFORE, for and in consideration of the premises, the terms and
conditions herein and for other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, MCI and Customer
hereby agree as follows:
1. DEFINITIONS CONTAINED IN MCI TARIFF FCC NO. 1.
All capitalized terms used herein and not expressly defined herein
shall have the respective meanings given to such terms in the MCI Tariff FCC
No. 1 ("Tariff") on file with the Federal Communications Commission ("FCC").
2. DEFINITION OF BASE RATES.
"Base Rates" shall mean rates and discounts for which Customer
qualifies under the Tariff for services described in the Tariff, or if not
in the Tariff, in standard price lists, all calculated without application
of the discounts provided by this Agreement; provided, however, that: (i)
the Base Rates for private line services subject to Network Pricing Plans
("NPP") shall be the month to month rates under the Tariff after application
of applicable discounts provided under the Tariff; (ii) the Base Rates for
interstate Vnet service shall b determined by dividing the applicable "Vnet
Rate" (as hereinafter defined) by * and (iii) the Base Rates for
interstate 800 service shall be determined by dividing the applicable "800
Rate" (as hereinafter defined) by * .
3. SERVICE PROVISIONING AND RECEIPT.
MCI will provide to Customer, and Customer will receive from MCI, interstate
and international telecommunications service(s) provided pursuant to the
Tariff, MCI Tariff FCC No. 8, WUI Tariff FCC No. 27, and any other interstate
and international tariff of MCI and its affiliates, each as supplemented by
this Agreement, and intrastate telecommunications services provided pursuant
to MCI's state tariffs governing such
MCI CONFIDENTIAL
* The omitted information is subject to a confidential treatment request
and has been filed separately with the Commission.
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services, This Agreement incorporates by reference the terms of each
such tariff. MCI may modify its tariffs from time to time in accordance
with law and thereby affect the service(s) furnished Customer.
In the event tariff revisions that may be required to implement the terms
of this Agreement are suspended or rejected, then either party may elect
to terminate this Agreement without liability on thirty (30) days' written
notice given not later than thirty (30) days after the event giving rise
to the termination right.
MCI will use its best efforts to maintain its tariffs in a manner
consistent with the terms of this Agreement. In the event that MCI revises
any tariff in a manner inconsistent in any material respect with the
provisions of this Agreement and MCI does not effect revisions that remedy
such inconsistency within thirty (30) days after receipt of written notice
from Customer, then Customer may, as its sole remedy, elect to terminate
this Agreement without liability on thirty (30) days'written notice given
not later than thirty (30) days after the event giving rise to the
termination right.
This Agreement is a Specialized Customer Arrangement as such term is
defined in Section B-17.03 of the Tariff and the services hereunder are
being provided to Customer pursuant to the provisions of the Tariff
applicable to such arrangements.
4. MINIMUM CHARGES.
(A) As used herein "Monthly Minimum" shall mean Eight Hundred
Thousand Dollars ($800,000) per month, and "Quarterly
Minimum" shall mean Three Million One Hundred Fifty Thousand
Dollars ($3,150,000) per calendar quarter (collectively
referred to as "Minimum Amount"). MCI calculates the
Monthly Minimum and the Quarterly Minimum by adding
recurring and usage charges at Base Rates for all
common carrier service furnished to Customer by MCI, but
excluding the following items: (i) taxes and tax related
surcharges; (ii) charges for any enhanced services, including
MCI Mail, MCI Fax, and Global Communications Services; (iii)
charges for equipment and collocation; (iv) charges incurred
where MCI or an MCI affiliate acts as agent for Customer in
the acquisition of goods or services; and (v) charges
incurred by third parties using pay phones or room phones
controlled by Customer. However, charges for service
furnished by MCI affiliates shall not be eligible for the
rates or discounts provided in this Agreement. MCI affiliates
are Telecom*USA, Inc., Western Union International, MCI
International, Inc. and MCI/OTI Corporation.
(B) In order to be entitled to the rates and discounts provided
by this Agreement, Customer must use not less than the
Monthly Minimum of MCI services described in this Agreement,
calculated at Base Rates, during each MCI monthly billing
period of the "Service Term" (as hereinafter defined).
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(C) If Customer's use of such services during any month of
the Service Term results in charges at Base Rates of
less than the Monthly Minimum, Customer will pay: (1)
Customer's actual amount of usage and other charges
calculated at Base Rates; plus (2) an underutilization charge
(which Customer agrees is reasonable) equal to twenty five
percent (25%) of the difference between the Monthly Minimum
and the combined actual amount of usage and other charges
calculated at Base Rates.
(D) If Customer's use of such services during any calendar
quarter of the Service Term results in charges at Base
Rates of less than the Quarterly Minimum, Customer will pay:
(i) Customer's actual amount of usage and other charges
calculated at Base Rates for the calendar quarter; plus (ii)
an underutilization charge (which Customer agrees is
reasonable) equal to twenty five percent (25%) of the
difference between the Quarterly Minimum and the combined
actual amount of usage and other charges calculated at Base
Rates; minus (iii) an amount equal to any underutilization
charges paid by Customer pursuant to Section 4(C) for failing
to satisfy the Monthly Minimum in any month of the calendar
quarter.
5. RATES AND DISCOUNTS FOR MCI SERVICES.
If the Minimum Amount is satisfied in any given month of the
Service Term, Customer will receive the rates and discounts set forth
below during such month:
(A) VNET SERVICE, INCLUDING VNET CARD.
(i) For domestic intrastate services, Customer shall pay
standard tariffed rates less the * discount associated
with Network Savings Plan Option 4, *
(ii) For domestic interstate services, Customer will receive
the following fixed rates per minute depending on mileage band,
time of day, length of call, and traffic type:
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a. Dedicated/Dedicated
Day Evening/Night/Weekend
Each Additional Each Additional
Mileage First 18 Increment of First 18 Increment of
Band Seconds 6 Seconds or Less Seconds 6 Seconds or Less
---- -------- ----------------- ---------- -----------------
* * * * *
b. Dedicated/Switched
Switched/Dedicated
Day Evening/Night/Weekend
Each Additional Each Additional
Mileage First 18 Increment of First 18 Increment of
Band Seconds 6 Seconds or Less Seconds 6 Seconds or Less
---- -------- ----------------- ---------- -----------------
* * * * *
c. Switched/Switched
Day Evening/Night/Weekend
Each Additional Each Additional
Mileage First 18 Increment of First 18 Increment of
Band Seconds 6 Seconds or Less Secondss 6 Seconds or Less
---- -------- ----------------- ---------- -----------------
* * * * *
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(iii) The above referenced rates and discounts shall not apply to
pass-through access/egress (or related) charges imposed by third
parties (such as local exchange carriers); access or egress charges
for Vnet Service, any non-recurring charge imposed in the Tariff,
charges for intrastate and international service, charges for
directory assistance, taxes and surcharges.
(B) MCI 800.
(i) For domestic intrastate services, Customer shall pay
standard tariffed rates less the discounts associated with the
MCI * which discounts are currently * for Dedicated
Access Line ("DAL") and * Common Business Line ("CBL").
After application of the VIP Option discounts, the MCI Multi-Option
Discount shall be applied to Customer's monthly usage charges.
(ii) For domestic interstate services, Customer will receive
the following fixed, non-distance sensitive, postalized rates per
minute depending on call type and time of day:
Night/
Day Evening Weekend
--- ------- -------
CBL $ * $. * $ *
DAL $ * $. * $ *
(iii) MCI agrees to waive each month the following feature
charges sociated with specific MCI 800 Service number not to exceed
* per month:
Tailored Call Coverage (Section C-3.0881 of the Tariff), Point of
Call Routing (Section C-3.0882 of the Tariff), Day of Week
Routing (Section C-3.0883 of the Tariff), Holiday Routing
(Section C-3.0884 of the Tariff), Time Internal Routing (Section
C-3. 0885 of the Tariff), Percentage Allocation Routing (Section
C-3.0886 of the Tariff) and Alternate Routing (Section C-3.0887
of the Tariff).
(iv) For international MCI 800 service calls that originate in
Canada and terminate to a Customer location in the continental United
States, Customer will receive the following fixed, non-distance
sensitive, postalized rates per minute depending on call type and time
of day:
Night/
Day Evening Weekend
---- ------- -------
CBL $ * $. * $ *
DAL $ * $. * $ *
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(v) The above referenced rates and discounts shall apply to usage
and recurring charges, but shall not apply to pass through
access/egress (or related) charges imposed by third parties (such as
LECs), any non-recurring charge imposed in the Tariff, charges for
intrastate and international service, charges for directory
assistance, taxes and surcharges.
(C) MCI 900 SERVICE.
(i) For MCI 900 Service, provided that Customer's usage of
MCI's 900 Service in a given month of the Service Term is less than
* minutes, Customer shall pay * tariffed rates plus any
applicable tariff surcharges less: (i) the * tariff discount,
which is * (ii) after * discount.
(ii) In the event that Customer's usage of MCI's 900 Service in an
given month of the Service Term is * minutes, Customer shall pay a
fixed, postalized rate per minute of * for MCI 900 Service.
(D) PRIVATE LINE DISCOUNTS.
For private line services, Customer shall be entitled to the
benefit of the NPP discounts for Dedicated Lease Line Services
associated with * specified in the Tariff, which discounts will
remain fixed during the "Initial Term" (as hereinafter defined) and
are * for DDS service, * for T-1 service,
for fractional T-1 service and * for T-3 service.
Services provided with such NPP discount shall not be
subject to separate minimum revenue and term requirements,
notwithstanding the Tariff.
(E) VNET INTERNATIONAL TERM PLAN.
Customer subscribes to the Vnet International Term Plan ("ITP")
under Section C 3.091918 of the Tariff and shall receive a *
discount on International Direct Distance Dial ("IDDD") services
thereunder, after application of the standard tariffed discount on
IDDD services.
(F) FORUM CONFERENCE CALLING SERVICE.
The rates applicable to Customer for Intercity Facilities Usage
charges pursuant to Section C-3.17211 of the Tariff for calls which
both originate and terminate in the U.S. mainland, Alaska, Hawaii,
Puerto Rico or U.S. Virgin Islands shall be $ * per minute per
bridge port for attended calls. The per call and per leg charges set
forth in the Tariff shall not apply to Customer. Forum service shall
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not be subject to any other discounts, whether set forth in
this Agreement or in the Tariff.
(G) ACCESS COORDINATION AND CENTRAL OFFICE CONNECTION.
For each T-1 utilized by Customer, Customer shall pay * Central
Office Connection ("COC") and * Access Coordination,
which charges shall remain fixed during the Initial Term hereof.
(H) 800 TRAFFICVIEW.
Customer will receive a discount of * off the standard
tariffed rates for the TrafficView product.
(I) 800 MULTIMANAGER.
Customer will receive a discount of * off the standard tariffed
rates for the 800 MultiManager product and MCI agrees to waive
all installation charges associated with said product.
(J) D-CHANNEL SERVICE DISCOUNT.
During any month of the Initial Term in which Customer meets the
Minimum Amount and Customer's combined monthly MCI T-1 access COC
charges and MCI Integrated Services Digital Network ("ISDN") D-Channel
surcharge * Customer shall receive a * discount
in such month off the surcharges associated with the monthly recurring
charges for MCI ISDN D-Channel service.
(K) 800 ECR FEATURES.
Customer will receive discounts on the Enhanced Call Router
("ECR") feature usage charges for "ECR Menu Routing" (Tariff Section
C-3.088151) and "Takeback and Transfer" (Tariff Section C-3.0881570)
in accordance with the following schedule based on the percentage of
ECR calls in that month which utilize the ECR features:
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Percentage of ECR Calls in be applied to Monthly
Month Utilizing Feature Usage Charges for Feature
----------------------- -------------------------
Less than or equal to 25% *
Greater than 25%
but less than or equal to 50% *
Greater than 50%
but less than or equal to 75% *
Greater than 75% *
6. Exclusivity.
(A) Customer agrees it shall use MCI exclusively as its
interexchange carrier ("IXC") during the Service Term hereof for
all IXC services, including, without limitation, virtual network
services, 800 services, data services and international
services, at all times during the Service Term during which MCI
is technically able to offer "Intelligent Call Routing",
"Customer Provided Service Control Point" and "Call Transfer
Capability" (as such terms are defined on Schedule 1 attached
hereto and incorporated herein by this reference) to Customer.
During periods of the service Term in which MCI is not
technically able to offer Intelligent Call Routing, Customer
Provided Service Control Point and Call Transfer Capability,
Customer agrees it shall use MCI exclusively for all its IXC
services, including, without limitation, virtual network
services, data services, international services and all 800
services which do not require Intelligent Call Routing, Customer
Provided Service Control or Call Transfer Capability. For
definitional purposes of this Agreement only, Customer shall
mean Customer and all majority-owned subsidiaries. Exclusivity
shall mean not less than * of all IXC traffic, based on a
dollar volume.
(B) After the Effective Date of this Agreement, but not more than
once annually, upon significant changes in Customer's traffic
patterns or upon a public statement by Customer (including
advertisements) indicating a significant migration of traffic,
MCI may request, and Customer shall provide to MCI in writing,
Customer records, data and invoices pertaining to its to its
total IXC service usage for the most recent twelve (12) month
period preceding the request. MCI may review this information
for the sole purpose of determining Customer's compliance with
the exclusivity covenant set forth in Section 6(A) above.
7. INSTALLATION CREDIT.
Provided that Customer achieves the Minimum Amount throughout the
Initial Term, Customer shall receive a credit of up to *
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* for the one-time installation and other one-time non-recurring charges
associated with the implementation of MCI service under this Agreement. Such
credits will be issued from time to time throughout the Initial Term as MCI
services are installed.
8. PAYMENT.
Customer shall pay MCI for service(s) within twenty-five (25) days of
Customer's receipt of MCI's detailed invoice. If Customer should default in
any payment required hereunder on the date when due, the outstanding
balance shall bear simple interest at the rate of fifteen (15%) per annum,
until paid in full.
9. PROVISIONS FOR SERVICE INTERRUPTIONS.
(A) CREDIT ALLOWANCE FOR SERVICE INTERRUPTIONS.
Customer shall be entitled to Credit Allowances for Service
Interruptions in accordance with Section B.15 of the Tariff. A
Service Interruption begins when Customer reports the interruption to
MCI and releases the "Service Element" (as hereinafter defined) for
testing and repair and ends when MCI retenders the Service Element to
Customer in good working condition. For the purpose of determining the
Quarterly Minimum and the Monthly Minimum only, MCI will not reduce
monthly charges by the amount of Credit Allowances applied. For
purposes of this Agreement, "Service Element" refers to the specific
MCI service affected at the specific geographic Customer location
affected.
(B) PARTIAL DISCONTINUANCE WITHOUT LIABILITY.
Customer may discontinue receipt of service on a Service Element at any
time without liability except as otherwise expressly provided
for in the Tariff or this Agreement (an example of such a provision
might be where a private line installation charge is waived but is to
be assessed if the line is not in place for a minimum period). If
Customer discontinues receipt of service on a Service Element having
chronic Service Interruptions and does not take substitute service from
MCI, the Minimum Amount for purposes of assessing underutilization
charges shall be reduced by the average monthly charges for the
discontinued Service Element measured over the last three (3) billing
months prior to discontinuation. A Service Element with chronic Service
Interruptions is one on which there have been three or more Service
Interruptions, each consisting of thirty (30) or more minutes, totaling
twenty-four (24) or more hours within three (3) consecutive calendar
months.
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10. TERM AND TERMINATION.
(A) INITIAL TERM.
The initial term (the "Initial Term") shall begin on the
Effective Date and end upon the completion of thirty six
(36) months thereafter.
(B) ADDITIONAL TERM.
The service term hereof (the "Service Term") shall
include the Initial Term and shall continue on a
month-to-month basis thereafter until either party provides
the other with at least ninety (90) days prior written notice
of its intent to terminate this Agreement. Nothing in this
Agreement shall modify or be deemed to modify MCI's right to
terminate service(s) as provided for in Section B-11.01 of the
Tariff or in any other MCI tariff.
(C) TERMINATION OF AGREEMENT.
After termination of this Agreement, service received
by Customer shall be subject to the terms and conditions,
including rates, of MCI's filed and effective tariffs.
11. TERMINATION LIABILITY.
If Customer terminates this Agreement during the Initial Term, for
reasons other than for "Cause" (as hereinafter defined) or to take service
under another arrangement with MCI having equal or greater term and volume
requirements, Customer will pay within thirty (30) days after such
termination: (i) a * that would have been applicable for the
remaining unexpired portion of the Initial Term; and (ii) the Interstate
800 Credit in full, without setoff or deduction. As used herein,
"Cause" shall mean a failure of MCI to perform a material obligation under
this Agreement which failure is not remedied by MCI within thirty (30)
days after receipt of written notice.
12. REPRESENTATION AND WARRANTY.
Customer represents and warrants that it has the full right, power and
authority to enter into this Agreement, to perform its obligations
hereunder and that the execution, delivery and performance by Customer of
this Agreement will not conflict with, result in the breach of or
constitute a default under any contract, agreement or other document of
whatever kind or nature to which Customer is a party or by which Customer
may be bound or affected.
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13. NONDISCLOSURE.
Customer shall not disclose to any third party (excluding attorneys and
accountants retained by Customer, who shall be deemed agents of Customer
under the provisions of this Section) during the Service Term or during the
three-year period after termination of this Agreement any of the material
terms and conditions set forth in this Agreement (including but not limited
to price-related terms), unless such disclosure is lawfully required by any
federal governmental agency or is otherwise required to be disclosed by law
or is necessary in any legal proceeding establishing rights and obligations
under this Agreement, or unless Customer obtains MCI's written consent
which shall not be unreasonably withheld prior to such disclosure. Customer
agrees to use its best efforts to ensure the continued confidentiality of
such information and all proprietary information known, disclosed, or made
available to it, or any of its employees or agents as a result of this
agreement or its relationship with MCI. Customer further agrees to
cooperate with MCI's reasonable confidentiality and other requirements
which may be established from time to time, and immediately notify MCI of
any unauthorized disclosure or use of such confidential information of
which customer becomes aware. MCI reserves the right, as its sole remedy,
to terminate this Agreement immediately upon delivering written notice to
Customer if there has been any unpermitted third party disclosure
hereunder.
14. OVERLAPPING DISCOUNTS.
If MCI amends the Tariff to provide a discount applicable to combined
usage of services (as opposed to a discount on any individual service) that
is similar in nature but not necessary similar in amount to that provided
in this Agreement, Customer may elect either to receive the benefit of such
discount or continue to receive the discount provided hereunder, but shall
not be entitled to receive the benefit of both discounts.
The discounts provided for herein are in lieu of, not in addition to,
any discounts or commissions to which Customer is or would otherwise be
entitled to receive by application of Tariff discounts applicable to
Qualified Commercial Affinity Group members, Qualified Industry Affinity
Group members, Qualified Residential Affinity Group members (all as the
same are defined in the Tariff), and recipients of discounts or commissions
under these or any other similar or related programs (e.g. NASD, IVANS,
etc.).
15. NOTICE.
All notices, requests, or other communications (excluding invoices)
hereunder shall be in writing and hand delivered or addressed and sent by
certified or registered mall, Postage prepaid and return receipt requested
to the parties as follows:
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If to MCI: MCI Telecommunications Corporation
6 Concourse Parkway
Atlanta, Georgia 30329
Attn: Vice President
National Accounts
with a copy to: MCI Telecommunications Corporation
5 International Drive
Rye Brook, New York 10573
Attn: Director, Legal Affairs
If to Customer: Home Shopping Network, Inc.
P.O. Box 9090
Clearwater, Florida 33606-9090
Attn: Executive Vice President, MIS
with a copy to: Home Shopping Network, Inc.
P.O. Box 9090
Clearwater, Florida 33606-9090
Attn: General Counsel
If either party wishes to alter the recipient or address to which
communications to it are sent, it may do so by providing the name of the new
recipient or a new address, in writing, to the other party. All notices,
requests or other communications addressed in accordance with this Agreement
shall be effective when received if delivered by mail or if personally
delivered, the date on which delivery is made.
16. GOVERNING LAW/ARBITRATION.
Customer acknowledges and agrees that MCI, in conducting its business
in the manner set forth herein, is subject to the Communications Act of
1934, as amended and as interpreted and applied by the FCC. This Agreement
shall be governed and construed in accordance with the laws of the State of
New York without regard to the conflict of law provisions thereof. MCI and
Customer hereby stipulate and agree that any and all disputes between the
parties arising out of or relating to this Agreement, except those disputes
as may be preempted by the original jurisdiction afforded the Federal
Communications Commission, shall be submitted for resolution by arbitration
before a single arbitrator in accordance with the Commercial Rules of
Arbitration of the American Arbitration Association then in effect. Such
arbitration shall be held at an office of the American Arbitration
Association in New York, New York. To the fullest extentpermitted by law,
the parties irrevocably submit to the jurisdiction of the arbitrator, waive
any objection to the venue of the arbitration, and enforced in any court of
competent jurisdiction. The arbitrator shall have no power or authority to
make awards or issue orders of any kind except as expressly permitted by
this Agreement, applicable MCI Tariffs and substantive law. In particular
and without limiting the generality of the
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foregoing, if this Agreement or applicable MCI tariffs limit the relief
available to one or both parties (e.g., by prohibiting awards of incidental
or consequential damages or otherwise limits the liability of any party in
any respect), then the arbitrator shall have no power or authority to make
any award that provides for any such relief. In addition, the arbitrator
shall have no power or authority to make any award that provides for any
element of punitive or exemplary damages. MCI and Customer hereby further
stipulate and agree that each party to such arbitration proceedings shall
pay its own costs of participating in the arbitration, and that the losing
party shall pay the fees and expenses of the arbitrator. Notwithstanding
the foregoing, both parties shall have the right to seek and obtain from
any court of competent jurisdiction any equitable or provisional relief or
remedy enforcing any right it may have in connection with this Agreement or
applicable MCI tariffs. No such judicial action permitted by the foregoing
sentence shall waive or limit either parties right to adjudicate the merits
of the dispute by arbitration.
17. COMPLETE AGREEMENT; AMENDMENTS.
This Agreement, together with the Tariff, is the complete agreement of
the parties concerning its subject matter and supersedes all other prior
agreements and representations, oral or in writing, concerning its subject
matter, including, without limitation, that certain Agreement for
Telecommunications Services dated March 26, 1991, as amended by that
certain Amendment dated March 30, 1992. Any amendments (except amendments
of the Tariff) must be in writing and signed by both parties to this
Agreement. No waiver of any of the provisions of this Agreement shall be
binding unless it is in writing and signed by the party making the waiver.
No waiver shall be deemed, or shall constitute, a waiver of any other
provision, whether or not similar, and no waiver shall be deemed, or shall
constitute, a continuing waiver.
All sections and subsections of this Agreement are severable and the
unenforceability or invalidity of any of the sections or subsections of
this Agreement shall not, unless Customer is deprived of an economic
benefit hereunder as a result of such unenforceability or invalidity,
affect the validity or enforceability of the remaining sections or
subsections of this Agreement, but such remaining sections or subsections
will be interpreted or construed in such a manner as to carry out fully the
intention of the parties. In the event the unenforceability or invalidity
of any of the sections or subsections of this Agreement deprive the
Customer of an economic benefit hereunder, the Customer may elect to
terminate this Agreement without liability on thirty (30) days' written
notice.
18. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
successors and permitted assigns of the parties hereto, as provided below.
Neither this Agreement, nor any rights or obligations of Customer herein
shall be transferable or assignable by Customer without MCI's prior written
consent and any attempted transfer or assignment hereof by Customer not in
accordance herewith shall be null and void.
MCI CONFIDENTIAL
<PAGE> 14
Page 14 of 14
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the dates set forth
below, effective as of the Effective Date.
MCI TELECOMMUNICATIONS CORPORATION
By: A. B.
Name: Alan B.
Title: Vice President
Date: 12/29/93
HOME SHOPPING NETWORK, INC.
By: Stella L. Tavilla
Name: Stella L. Tavilla
Title: EVP - MIS
Date: 11/11/93
MCI CONFIDENTIAL
<PAGE> 15
SCHEDULE 1
"Intelligent Call Routing" shall mean database intelligent
(origination, termination or both) call routing that incorporates load
balancing between call centers (automatic call distribution sites) with a
caller recognition routing feature for call by call routing and other industry
standard peripheral features.
"Customer Provided Service Control Point" shall mean a gateway to the MCI data
access point to serve as an external interface to MCI for database routing and
intelligence. The specifications for such interface are to be provided to
Customer by MCI.
"Call Transfer Capability" shall mean the ability for Customer provided
equipment to send an MCI specified protocol to the MCI network for purposes of
transferring an originating call to a second destination, which ability
includes network management features.
MCI CONFIDENTIAL
