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Exhibit 99.2
SERVICES LICENSE AGREEMENT
This Agreement (the "Agreement") is entered into this 13th day of
April, 2000 by and among HYPERTV NETWORKS, INC., a Delaware corporation
having its corporate offices at 1270 Avenue of the Americas, Suite 2401, New
York, New York 10020 ("HTVN"), LIBERTY LIVEWIRE, LLC, a Delaware limited
liability company, having its corporate offices at 9197 South Peoria Street,
Englewood, Colorado 80112 ("Livewire"), and HYPERTV WITH LIVEWIRE, LLC, a
Delaware limited liability company whose sole members are HTVN and Livewire
(the "Company"). Livewire and the Company are herein individually referred to
as "Licensee" and collectively referred to as the "Licensees".
WITNESSETH
WHEREAS, HTVN is the holder of all of the rights, titles
and interests that are necessary for the grant of the licenses provided in
this Agreement;
WHEREAS, Livewire has contracted for the right to provide
Hosting Services and Authoring Services on an exclusive basis in the Field of
Use in connection with the HyperTV Technology;
WHEREAS, HTVN and Livewire have formed the Company whose
prime responsibility will be the coordination and the management of the
marketing and sales of the HyperTV Technology in the Field of Use; and
WHEREAS, HyperTV Networks wishes to grant to Licensees and
Licensees wish to obtain from HyperTV Networks an exclusive, worldwide,
perpetual, fully-paid license to use and exploit the HyperTV Technology as
provided herein;
NOW, THEREFORE, in consideration of the foregoing and of
the mutual covenants herein contained, the parties agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have
the following meanings:
(A) ACTV means ACTV, Inc., a Delaware corporation.
(B) AFFILIATE of any person or entity means another person
or entity, of which the first person or entity owns,
directly or through one or more Affiliates, capital
stock or other ownership interests representing, on a
fully-diluted basis, a majority of the total equity
interests and a majority of the total equity voting
power.
(C) ACTV/HTVN LICENSE AGREEMENT means the license agreement
dated March 8, 1999, by and among ACTV and HTVN, a copy
of which is
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attached as Exhibit A hereto.
(D) AUTHORING SERVICES means the creation of any content for
HyperTV Distributed Community Networks.
(E) CLIENTS means the clients who have purchased HyperTV
Technology products and services marketed and sold by,
or on behalf of (i) the Company or (ii) Livewire as
provided in Section 2.3.4. of the Cooperative Venture
Agreement.
(F) COOPERATIVE VENTURE AGREEMENT means the agreement of
that name by and among HTVN, Livewire and the Company
dated the date hereof.
(G) DCN means the Distributed Community Network UNIX-based
software package which provides the foundational end
user connection management, chat and synchronization
means for the HyperTV Technology and all releases,
updates, enhancements and modifications thereof.
(H) DVD means a Digital Versatile Disc, a popular consumer
device used for the high quality display of full motion
MPEG video/audio content on a DVD playback device.
(I) EVENT BROADCAST SERVICES means the operation and
monitoring of HyperTV Distributed Community Networks to
support the broadcast of HyperTV events, whether
automated or manually-controlled and whether live or
prerecorded.
(J) FIELD OF USE means any use of HyperTV Technology in
connection with all television, video and filmed content
of any kind, including without limitation long-form
television programming of any kind (including serials,
specials, mini-series, movies of the week, news, and
infotainment), commercial advertising (including both
infomercials and short-form spots), music videos,
theatrical releases, and non-theatrical feature films of
any kind, pay-per-view, foreign language,
business-to-business programming represented by
corporate communications, fully programmed
non-commercial television networks that are
biographical, informational, educational or non-fiction
such as PBS, promotional programming, and specialty
programming such as used by On Command, in any case
whether distributed to the viewer by over-the-air
broadcast, cable, satellite, streaming media, DVD,
videotape or other method (whether narrowband or
broadband). Anything contained herein to the contrary
notwithstanding, the Field of Use excludes: (i)
e-School-Registered Trademark-'s educational and
instructional programming, whether distributed to the
learner/student by over-the-air
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broadcast, cable, satellite, streaming media, DVD,
videotape or other method (whether narrowband or
broadband); (ii) training programming for corporations
and government agencies (provided that if Livewire has
an existing relationship with an existing client, HTVN
and Livewire will work together to apportion the
provision of services to such client by and among each
other in an equitable manner); and (iii) Authoring
Services provided in conjunction with ACTV's
Individualized Television.
The Parties anticipate that business-to-business
programming will fall within either of two areas:
corporate communications or training. If the
business-to-business programming is not in one of
those two areas, the Parties agree to allocate, in
good faith, the respective responsibilities and
Revenues relating to such business-to-business
programming.
(K) HOSTING SERVICES means the distribution and hosting of
content and services for Clients to utilize, and for
consumers to access, HyperTV Distributed Community
Networks. Hosting Services include the facilities,
hardware, bandwidth and technical expertise necessary to
support the HyperTV experience.
(L) HYPERTV DISTRIBUTED COMMUNITY NETWORKS means the overall
hardware and software platform (including the DCN)
required for delivery of the HyperTV experience.
(M) HYPERTV TECHNOLOGY means the HyperTV patents and patent
applications listed on Exhibit B hereto, and all
technology, trade secrets and know-how of ACTV, HTVN or
any other direct or indirect subsidiary of ACTV related
to the synchronized delivery of video, on the one hand,
and Web-based programming or other content, on the other
hand, including proprietary software technologies,
software methods, and plug-ins. HyperTV Technology
explicitly includes the selection of the video and/or
content based on stored user profiling; wherein such
profile information is collected over the Internet or
World Wide Web.
(N) IMPROVEMENTS means any and all improvements,
refinements, enhancements, upgrades, revisions, bug
fixes, and other modifications of the HyperTV
Technology.
(O) INDIVIDUALIZED TELEVISION means video programming that
is enhanced with additional video, graphic and/or audio
signals related in content and time such that viewers
see and/or hear only certain of the signals at a given
moment and the others remain transparent, and in
response to the viewer's inputs to programming options
or to stored selection criteria (e.g., personal
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profile) the individualized programming switches from
one signal to another, giving the viewer an appropriate
response. Individualized television includes all
technology, trade secrets and know-how of ACTV or any
other direct or indirect subsidiary of ACTV related to
such video programming and the ACTV patents and pending
patents listed on Exhibit C hereto.
(P) REVENUES means any and all sums paid by Clients or other
third parties to Livewire and/or the Company and/or
HTVN, in cash or in kind, in connection with, or for the
use of, the HyperTV Technology and/or services provided
by Livewire and/or the Company and/or HTVN pursuant to
the terms of the Cooperative Venture Agreement.
(Q) TECHNICAL QUALITY CONTROL SERVICES means the review of
content to ensure that content is compatible with
HyperTV Distributed Community Networks and conforms to
the Client's specifications.
(R) WOLZIEN PATENT AND IMPROVEMENTS means U.S. Patent
5761606, entitled "Media Online Services Access Via
Address Embedded in Video or Audio Program" which is
included as part of the HyperTV Technology and any
improvements thereto to which Media Online Services,
Inc. acquires title pursuant to the Assignment Purchase
Agreement dated April 7, 1999 by and between Thomas R.
Wolzein and Media Online Services, Inc.
2. GRANT OF RIGHTS.
(A) HTVN hereby grants to the Company a worldwide,
perpetual, fully-paid license to use and exploit the HyperTV Technology,
which license shall be exclusive (subject to the rights of Clients, HTVN and
Livewire hereunder and under the Cooperative Venture Agreement) in the Field
of Use. HTVN and the Company hereby grant (and each, individually, hereby
grants) to Livewire a worldwide, perpetual, fully-paid license to use and
exploit the HyperTV Technology, which license shall be exclusive (subject to
the rights of Clients, HTVN and the Company hereunder and under the
Cooperative Venture Agreement) to provide Authoring Services and Hosting
Services in the Field of Use.
(B) HTVN and Livewire hereby grant to the Company limited
licenses to use and reproduce any HTVN and Livewire trademarks or tradenames
as necessary for the purpose of allowing the Company to fully promote,
distribute, market and sell the HyperTV Technology in the Field of Use in
accordance with the terms and conditions of the Cooperative Venture
Agreement. The Company expressly acknowledges that all rights with respect to
the HTVN and Livewire trademarks are reserved to and shall reside in HTVN and
Livewire, respectively. To the extent that approval or licenses to the
foregoing trademarks and tradenames are necessary from Affiliates of HTVN
and/or Livewire for the aforementioned purposes, such approval or
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licenses shall be obtained by HTVN and/or Livewire within thirty (30) days
from the execution of this Agreement without cost to the Company.
(C) All products and services that are marketed, sold or
utilized in any manner and that incorporate in any manner all or any part of
HyperTV Technology within the license granted hereunder will bear a
proprietary rights notice, in form and substance satisfactory to HTVN, which
shall be sufficient in HTVN's judgment, to protect its rights and interest in
the rights granted by HTVN to Licensees pursuant hereto. Licensees further
AGREE to give proper notice of trademarks, patents or other copyrights, where
applicable, in connection with the use by Licensees of any rights hereunder.
Licensees agree to mark all products/services and related materials, which
incorporate all or any part of the HyperTV Technology under the license
granted in this Agreement. Such mark shall specifically refer to the word
"Patent(s)" and the number(s) of the patents and patents pending listed in
Exhibit B to the Cooperative Venture Agreement.
(D) Intentionally Left Blank.
(E) The Licensees agree and acknowledge that during the
term of this Agreement Media Online Services, Inc. will seek to: (i) provide
non-profit public health organizations, including agencies emphasizing mental
health and addiction, royalty-free licenses to use the Wolzein Patent and
Improvements so long as such usage shall not directly or indirectly benefit
any for-profit organizations affiliated with the non-profit organization, its
directors or management; and (ii) provide manufacturers of consumer equipment
under license having the ability for external serial control or an open
standard such as it may be operated through secondary equipment by
individuals with massive physical disability, with incentive, including
without limitation, a royalty-free license under the Wolzein Patent and
Improvements to develop and provide such equipment for use by individuals
with massive physical disability. The Parties hereto acknowledge and agree
that HTVN is required to obtain approval from Thomas R. Wolzein with respect
to applications of the HyperTV Technology for use with DVDs pursuant to the
Assignment Purchase Agreement dated April 7, 1999 by and among Thomas R.
Wolzein and Media Online Services, Inc.
(F) In accordance with and subject to the limitations set
forth in the Cooperative Venture Agreement, as between HTVN and Licensees,
HTVN shall retain all other rights to make, have made, use, offer for sale,
sell or otherwise dispose of (with the right to sublicense, subject to the
rights of the Company and Livewire hereunder and under the Cooperative
Venture Agreement) the products or services covered by the HyperTV Technology.
3. REVENUES.
(A) All Revenues collected by the Company shall be
distributed pursuant to the Cooperative Venture Agreement by the Company to
HTVN and Livewire, respectively, in accordance with the services performed by
each as set forth in the Cooperative Venture Agreement.
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(B) All Revenues collected by either HTVN or Livewire shall
be distributed pursuant to the Cooperative Venture Agreement by HTVN or
Livewire to each other, or retained, in either case as set forth in the
Cooperative Venture Agreement.
4. REVIEW.
HTVN shall have the right, at any time during the term of
this Agreement and for one (1) year after its termination, upon reasonable
notice to each of the Licensees, to examine and make copies of all
sub-licenses entered into with respect to the HyperTV Technology and related
documentation, at its own expense.
5. CLIENT USE LICENSES AND RESERVATION RIGHTS
Licensees shall have the right to grant to Clients the
nontransferable right to utilize the HyperTV Technology ("Client Use
License") and shall have the exclusive right to grant Client Use Licenses in
the Field of Use in accordance with and subject to the provisions set forth
in the Cooperative Venture Agreement. Licensees shall have the right to grant
sublicenses hereunder to their respective Affiliates and shall have the right
to authorize subcontractors to provide services or products to the Licensees
in connection with the delivery of the HyperTV Technology, in accordance with
and subject to the provisions set forth in the Cooperative Venture Agreement.
All rights not specifically granted to Licensees hereunder are reserved to
HTVN. Except as otherwise expressly provided for herein or in the Cooperative
Venture Agreement, Licensees shall not sell, transfer, assign, convey,
encumber or sub-license any of the rights granted hereunder.
6. CONFIDENTIALITY.
Licensees shall maintain in strict confidence and shall not
at any time whether before or after the termination of this Agreement utilize
for any purpose other than as permitted under this License, or cause, enable,
assist or permit anyone else to utilize any of the HyperTV Technology,
Improvements and/or related information, including any and all information
derived from the foregoing information (the "Confidential Information") that
is not generally available to the public unless: (i) through no acts of
Licensees contrary to the obligations imposed hereby, such Confidential
Information becomes known to the public prior to the date of Licensees'
disclosure; (ii) such Confidential Information is approved for public release
by HTVN; (iii) such Confidential Information is rightfully received by
Licensees from a third party without restrictions and without breach of
Licensees' obligations hereunder; (iv) such Confidential Information is
independently developed by Licensees without breach of this Agreement; (v)
such Confidential Information is required to be disclosed by judicial or
governmental proceeding subject to a protective order; or (vi) such
disclosure is necessary or appropriate to the exploitation of the License
granted hereby and only then after such person or entity to whom disclosure
is to be made executes a confidentiality agreement acceptable to HTVN.
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Licensees understand and agree that the obligations and
restrictions provided herein are necessary and reasonable in order to protect
HTVN's business, and that HTVN could be irreparably harmed by any breach or
threatened breach hereof. In addition, to any other remedies available HTVN
shall be entitled to obtain temporary, preliminary and permanent injunctive
relief against a threatened breach or continuation of any such breach,
without the necessity of proving irreparable injury, which injury shall be
presumed.
Notwithstanding the foregoing, Licensees may disclose such
Confidential Information to their employees who need to know such information
in order for Licensees to use and exploit the HyperTV Technology in the Field
of Use pursuant to the terms of this Agreement if they have taken reasonable
steps to impose the aforesaid covenants of confidentiality on said employees
and to ensure that said employees will not violate said covenants, including,
but not limited to, causing said employees to enter into written agreements
in which said covenants of confidentiality are effectively imposed upon them.
Licensees will copy the Confidential Information only to the extent
reasonably necessary to enable Licensees to exercise their rights under the
License. In making any such copies, Licensees agree to produce faithfully all
notices respecting copyright, trade secrets, and other proprietary rights.
Nothing contained herein shall prevent Licensees from disclosing in general
terms the nature of their relationship with HTVN.
7. OWNERSHIP.
The parties acknowledge and agree that HTVN, ACTV or Media
Online Services, Inc. own and will continue to own all right, title and
interest in the HyperTV Technology and Improvements including any and all
copyrights, trade secrets, patents, know-how, designs, trademarks and other
rights. Nothing in this Agreement shall be construed to grant any ownership
interest or other rights in the items described in this Section 7 other than
the licenses and rights to use granted herein.
8. IMPROVEMENTS.
(A) HTVN shall promptly and fully disclose to Licensees all
Improvements in the Field of Use that it makes, conceives, invents or
acquires based on the HyperTV Technology. Any such Improvements that are made
by HTVN, whether patented or unpatented, shall be owned by HTVN, and HTVN
shall grant to Licensees a license to use such Improvements with the right to
sub-license according to the same terms and conditions set forth in this
Agreement.
(B) Each of the Licensees shall promptly and fully disclose
to HTVN all Improvements that it makes, conceives, invents or acquires based
on the HyperTV Technology. Any such Improvements that are made by Licensees,
whether patented or unpatented, shall be owned by HTVN, and HTVN shall grant
back to Licensees a license to use such Improvements according to the same
terms and conditions set forth in this Agreement.
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9. REPRESENTATIONS AND WARRANTIES OF HTVN. HTVN represents
and warrants to Licensees, that as of the date of this Agreement:
(A) ORGANIZATION, STANDING AND QUALIFICATION. HTVN is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, has all requisite corporate power and
authority to own its property and assets and to carry on its business as it
is currently being conducted.
(B) AGREEMENT AUTHORIZED; BINDING AND ENFORCEABLE. The
execution, delivery and performance of this Agreement has been duly
authorized by all required corporate action on the part of HTVN. This
Agreement is a valid, legal and binding obligation on HTVN, enforceable
against it in accordance with its respective terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights and by equitable
principles of general application which may limit the availability of certain
equitable remedies (such as specific performance).
(C) RIGHTS TO HTVN HTVN represents and warrants that it is
the holder of all rights, titles, and interests that are necessary for the
grant of the licenses provided in this Agreement.
(D) NO VIOLATION OF LAW. HTVN represents and warrants that
to the best of its knowledge, the HyperTV Technology will not violate any law
or infringe upon or violate any rights of any person, firm, or corporation.
(E) VALIDITY OF PATENTS INCLUDED IN THE HYPERTV TECHNOLOGY.
HTVN represents and warrants that to the best of it knowledge the patents
included in the HyperTV Technology have been validly issued, have not been
challenged and no adverse claim has been asserted.
(F) CONSENTS. No consent, approval, license, permit, order
or authorization by or declaration of filing with any court, administrative
agency or commission or other governmental authority or instrumentality,
domestic or foreign, or any third party, is required to be obtained or made
by or with respect to HTVN in connection with the execution and delivery of
this Agreement.
10. REPRESENTATIONS AND WARRANTIES OF LICENSEES. Each Licensee
represents and warrants to HTVN, as to itself, that as of the date of this
Agreement:
ORGANIZATION STANDING AND QUALIFICATION. Such Licensee is a
limited liability company duly organized, validly existing and in good standing
under the laws of the state of its formation, has all requisite power and
authority to own its properties and assets and to carry on its business as
currently being conducted.
(A) AGREEMENT AUTHORIZED BINDING AND ENFORCEABLE. The
execution, delivery and performance of this Agreement have been duly authorized
by all required action on the part of such Licensee. This Agreement is a valid,
legal and binding obligation of such Licensee, enforceable
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against such Licensee in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights and by equitable
principles of general application which may limit the availability of certain
equitable remedies (such as specific performance).
(B) CONSENTS. No consent, approval, license, permit, order
or authorization by or declaration of filing with any court, administrative
agency or commission or other governmental authority or instrumentality,
domestic or foreign, or any third party, is required to be obtained or made
by or with respect to Licensees in connection with the execution and delivery
of this Agreement.
(C) Such Licensee has received no representations or
warranties from HTVN or any of its employees or agents regarding the
projected results of the exploitation of the HyperTV Technology.
11. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN
HTVN SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE LICENSEES FOR
CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT
OF OR RELATED TO THE LICENSEES' USE OF THE HYPERTV TECHNOLOGY INCLUDING, BUT
NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS, OR LOST REVENUE; LOSS OR
DAMAGE TO DATA OR TO OTHER SOFTWARE OR HARDWARE; AND, LABOR TO RE-ENTER OR
RE-CREATE SOFTWARE OR DATA, EVEN IF HTVN IS APPRISED OF THE LIKELIHOOD OF
SUCH DAMAGES OCCURRING.
12. INDEMNITY.
Each party shall indemnify, defend (at the other party's
election) and hold harmless each other party, its parent and Affiliated
companies, successors and assigns, and each of its and their directors,
officers, agents and employees, from and against all liabilities or losses,
including, without limitation, reasonable attorneys' fees, arising out of any
claims, lawsuits or judgments, whether threatened or actual, fixed or
contingent, known or unknown, natural or unnatural, arising out of the breach
of any representation, warranty or covenant by such indemnifying party to
such indemnified party under this Agreement. Each party shall promptly inform
the other in writing of any such claim, demand or suit and shall fully
cooperate in the defense thereof.
13. ENFORCEMENT.
(A) NOTICE. Each party shall notify the other of any
conduct (of which that party becomes aware) by a third party that constitutes
infringement of the patents and pending patents included in the HyperTV
Technology.
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(B) HTVN. HTVN shall have the responsibility to defend the
HyperTV Technology against infringements or violations. In general, upon the
discovery of any infringement of the HyperTV Technology, HTVN shall have the
sole right to take appropriate action to suppress such infringement,
including the sole right to determine whether or not any action shall be
taken on account of such infringement or violation of the HyperTV Technology,
and the right to negotiate and enter into a pre-litigation or
pending-litigation settlement with the identified infringer and HTVN shall
receive any sums recovered in such suits or settlements. Any such settlement
by HTVN may include the grant of a non-exclusive license to use all or part
of the HyperTV Technology PROVIDED that no such license shall conflict with
or limit in any material respect Livewire's rights of exclusivity with
respect to the provision of Authoring Services and Hosting Services in the
Field of Use without the prior written consent of Livewire, which consent
shall not be unreasonably withheld or delayed.
HTVN shall from time to time consult with Livewire in good
faith with respect to any infringements and violations, and if Livewire so
requests, will provide Livewire with a reasonable opportunity to join HTVN in
any action to suppress such infringements or violations near the onset of
such suits, provided that in such event all costs, expenses, and attorneys
fees incurred shall be shared equally between the parties herein and neither
party shall settle any such action without the consent of the other, which
consent shall not be unreasonably withheld or delayed. In such a jointly
prosecuted suit, any sums recovered in the suit or in settlement thereof
shall be used, first, to pay any outstanding bills for expenses arising from
the prosecution and any settlement of the suit, and to reimburse the parties
herein for their contributions to such expenses; and, then, any remainder
shall be shared by the Parties.
14. TERM AND TERMINATION.
(A) Anything contained herein to the contrary
notwithstanding, the rights and use licenses granted herein to the Company
shall terminate automatically in the event of any termination of the
Cooperative Venture Agreement in accordance with its terms. In the event of
any such termination the Company shall (i) deliver to HTVN within five (5)
days of termination for any reason whatsoever, all books, notes, software,
drawings, electronic storage media, writings and other documents, in the
possession of the Company relating to HyperTV Technology and any Improvements
licensed to the Company, together with all copies of any other Confidential
Information in the possession of the Company; (ii) discontinue use of the any
other HyperTV Technology; and (iii) delete all HyperTV Technology software or
data files from the Company's servers and other computer memory devices
except for such archival copies thereof as shall be reasonable under the
circumstances and all rights granted by HTVN to the Licensees shall forthwith
revert to HTVN. However, the rights and obligations of the Licensees under 6,
7, 11 and 14 of this Agreement shall continue in full force and effect
notwithstanding the termination of the Licensees' use licenses hereunder.
(B) Notwithstanding the provisions of Section 14(A) or any
other provision of
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this Agreement or the Cooperative Venture Agreement, a termination of the
Cooperative Venture Agreement, or of the licenses granted to the Company or
Livewire hereunder, shall not result in the termination of any Client Use
Licenses granted by the Company or Livewire in accordance with this Agreement
and the Cooperative Venture Agreement, all of which shall continue in full
force and effect, in accordance with their respective terms.
(C) Anything contained herein to the contrary
notwithstanding, a termination of the Cooperative Venture Agreement, or any
termination of the rights and use licenses of the Company hereunder and
thereunder, shall not result in the termination of the rights and use
licenses provided to the Livewire hereunder and under the Cooperative Venture
Agreement. In such event, Livewire shall continue to remit to HTVN the
license fees due to HTVN pursuant to the HyperTV Technology licenses then in
effect, and shall be entitled to grant use licenses (on behalf of HTVN) to
any new and existing HyperTV Technology clients, serviced by Livewire from
time to time after such termination, upon such terms and conditions as HTVN
and Livewire shall in such event determine by reasonable good faith
negotiation; provided that in no event shall such terms and conditions be, in
the aggregate, less favorable to Livewire than the best terms and conditions
provided generally by HTVN, or any person on its behalf, to any unaffiliated
third party.
15 NOTICES: All notices, requests, consents and other
communications herein shall be in writing and shall be mailed by first class
or certified mail, postage prepaid, or personally delivered or sent by
overnight courier service that obtains evidence of delivery to the Party and
its counsel as follows:
If to HTVN: HyperTV Networks, Inc.
c/o ACTV, Inc.
1270 Avenue of the Americas
Suite 24101
New York, New York 10020
Attention: William C. Samuels
with a copy to: Gersten, Savage & Kaplowitz.LLP
101 East 52nd Street, 9th Floor
New York, New York 10022
Attention: Jay M. Kaplowitz, Esq.
If to Livewire: Liberty Livewire, LLC
9197 South Peoria Street,
Englewood, Colorado 80112
Attention: David Beddow
with a copy to: Baker & Botts, LLP
599 Lexington Avenue, 29th Floor
New York, New York 10022
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Attention: Marc A. Leaf, Esq.
if to the Company: to the then current address of the Company,
with copies to Livewire and HTVN.
16. NEW YORK LAW.
This Agreement and all matters or issues collateral thereto
shall be governed by and construed and enforced in accordance with the laws
of the State of New York applicable to contracts made and performed entirely
therein.
17. INTEGRATION. This Agreement, the Cooperative Venture
Agreement, the Warrant Agreement and the Registration Rights Agreement, in
the forms executed by the parties thereto constitute the entire agreement
among the parties with respect to the subject matter hereof and supercedes
all promises, representations and understandings made prior hereto or
contemporaneously herewith with respect to the subject matter hereof.
18. NO WAIVER.
No waiver by any of the parties, whether express or implied, of any
provisions of this Agreement or of any breach or default by any of the
parties, shall constitute a continuing waiver or a waiver of any other
provision of this Agreement, and no such waiver by any of the parties shall
prevent such party from enforcing any and all provisions of this Agreement or
from acting upon the same or any subsequent breach or default of one of the
other parties. No waiver of any provision hereunder shall be effective unless
it is in writing signed by the party against whom enforcement thereof is
sought. Each party acknowledges that it has participated fully in the
drafting of this Agreement and that in the event of any ambiguity in any of
the terms or provisions hereof, no such ambiguity shall be construed against
either party as the draftsperson thereof.
19. SEPARABILITY.
The provisions set forth in this Agreement shall be
considered to be separable and independent of each other. In the event that
any provision of this Agreement shall be determined in any jurisdiction to be
unenforceable, such determination shall not be deemed to affect the
enforceability of any other remaining provision and the parties agree that
any court making such a determination is hereby requested and empowered to
modify such provision and to substitute for such enforceable provision such
limitation or provision or a maximum scope as court then deems reasonable and
judicially enforceable and the parties agree that such substitute provision
shall be as enforceable in said jurisdiction as if set forth initially in
this Agreement. Any such substitute provision shall be applicable only in the
jurisdiction in which the original provision was determined
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to be unenforceable.
20. RELATIONSHIP OF THE PARTIES.
Nothing contained herein shall be construed to place the
parties in the relationship of partners or joint venturers and no party shall
have the power to bind or obligate the other.
21. TERMINATION OF COVENANTS, REPRESENTATIONS AND
WARRANTIES: All covenants, representations and warranties contained herein or
made in connection with the transactions contemplated hereby shall remain in
effect for the duration of the Agreement, except as otherwise expressly
provided herein.
22. CONSENT TO JURISDICTION AND VENUE.
Any litigation based on, or arising out of, under, or in
connection with this Agreement or any course of conduct, course of dealing,
statements (whether oral or written) or actions of HyperTV Networks shall be
brought and maintained exclusively in the court of the State of New York
without reference to its conflicts of laws rules or principles. The Licensees
hereby expressly and irrevocably submit to the exclusive jurisdiction of the
Federal Courts of the State of New York sitting in the Southern District for
the purpose of any such litigation as set forth above and irrevocably agree
to be bound by any final judgment rendered thereby in connection with such
litigation.
23. ASSIGNMENT.
All of the terms of this Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successor
and assigns of the parties hereto. The Licensees may not assign this
Agreement in whole or in part without the written consent of HTVN, which
shall not be unreasonably withheld or delayed, except that each Licensee
shall be entitled to assign its rights hereunder to any person or entity that
acquires substantially all the business and operations of such Licensee as a
going concern, and agrees to be bound by the terms and provisions of this
Agreement and the Cooperative Venture Agreement, provided that no such
assignment shall relieve such Licensee of its obligations hereunder and under
the Cooperative Venture Agreement without the written consent of HTVN, which
shall not be unreasonably withheld or delayed.
13
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed as of the day and year first above written.
HYPERTV NETWORKS, INC.
By: /s/ WILLIAM C. SAMUELS
--------------------------
William C. Samuels
Chairman
LIBERTY LIVEWIRE, LLC
By: /s/ DAVID P. BEDDOW
--------------------------
David P. Beddow
Vice President
HYPERTV WITH LIVEWIRE, LLC
By: /s/ WILLIAM W. AIRY
--------------------------
William W. Airy
By: /s/ BRUCE CROWLEY
--------------------------
Bruce Crowley
14
<PAGE>
EXHIBIT A
THE ACTV/HTVN LICENSE AGREEMENT
15
<PAGE>
EXHIBIT B
HYPERTV PATENTS
U.S. PATENTS ISSUED:
<TABLE>
<CAPTION>
------------------------- -------------------------- -------------------------------------------------------------------
PATENT NO. ISSUE DATE TITLE
------------------------- -------------------------- -------------------------------------------------------------------
<S> <C> <C>
------------------------- -------------------------- -------------------------------------------------------------------
5778181 July 7, 1998 Enhanced Video Programming System and Method for Incorporating
and Displaying Retrieved Integrated Internet Information Segments
------------------------- -------------------------- -------------------------------------------------------------------
------------------------- -------------------------- -------------------------------------------------------------------
5774664 June 30, 1998 Enhanced Video Programming System and Method for Incorporating
and Displaying Retrieved Integrated Internet Information Segments
------------------------- -------------------------- -------------------------------------------------------------------
------------------------- -------------------------- -------------------------------------------------------------------
5761606 June 2, 1998 Media Online Services Access Via Address Embedded in Video or
Audio Program
------------------------- -------------------------- -------------------------------------------------------------------
------------------------- -------------------------- -------------------------------------------------------------------
6018768 Jan. 25, 2000 Enhanced Video Programming System and Method for Incorporating
and Displaying Retrieved Integrated Internet Information Segments
------------------------- -------------------------- -------------------------------------------------------------------
------------------------- -------------------------- -------------------------------------------------------------------
5907322 May 25, 1999 Television Event Marking System
------------------------- -------------------------- -------------------------------------------------------------------
</TABLE>
U.S. PENDING APPLICATIONS:
<TABLE>
<CAPTION>
------------------------- -------------------------- -------------------------------------------------------------------
APPLICATION NO. APPLICATION DATE TITLE
------------------------- -------------------------- -------------------------------------------------------------------
<S> <C> <C>
------------------------- -------------------------- -------------------------------------------------------------------
09/396693 September 15, 1999 Enhanced Video Programming System and Method for Providing a
Distributed Community Network
------------------------- -------------------------- -------------------------------------------------------------------
------------------------- -------------------------- -------------------------------------------------------------------
Not yet assigned December 23, 1999 Enhanced Video Programming System and Method for Incorporating
and Displaying Retrieved Integrated Internet Information Segments
------------------------- -------------------------- -------------------------------------------------------------------
------------------------- -------------------------- -------------------------------------------------------------------
09/054740 April 3, 1998 Media Online Services Access Via Address Embedded in Video or
Audio Program
------------------------- -------------------------- -------------------------------------------------------------------
------------------------- -------------------------- -------------------------------------------------------------------
16
<PAGE>
------------------------- -------------------------- -------------------------------------------------------------------
Not yet assigned December 21, 1999 Media Online Services Access Via Address Embedded in Video or
Audio Program
------------------------- -------------------------- -------------------------------------------------------------------
</TABLE>
17
<PAGE>
EXHIBIT B (CONTINUED)
HYPERTV PATENTS
U.S. PENDING APPLICATIONS (CONTINUED):
<TABLE>
<CAPTION>
------------------------- -------------------------- -------------------------------------------------------------------
APPLICATION NO. APPLICATION DATE TITLE
------------------------- -------------------------- -------------------------------------------------------------------
<S> <C> <C>
------------------------- -------------------------- -------------------------------------------------------------------
09/397298 September 15, 1999 Enhanced Video Programming System and Method Utilizing a Web Page
Staging Area
------------------------- -------------------------- -------------------------------------------------------------------
------------------------- -------------------------- -------------------------------------------------------------------
09/409305 September 29, 1999 Enhanced Video Programming System and Method Utilizing User
Profile Information
------------------------- -------------------------- -------------------------------------------------------------------
------------------------- -------------------------- -------------------------------------------------------------------
09/411939 October 4, 1999 Enhanced Video Programming System and Method Utilizing Shared
Whiteboard
------------------------- -------------------------- -------------------------------------------------------------------
------------------------- -------------------------- -------------------------------------------------------------------
09/461808 December 16, 1999 Enhanced Video Programming System and Method Using a Local Host
for Communication
------------------------- -------------------------- -------------------------------------------------------------------
</TABLE>
18
<PAGE>
EXHIBIT C
ACTV INDIVIDUALIZED TELEVISION PATENTS AND PENDING PATENTS
ACTV U.S. PATENTS ISSUED:
<TABLE>
<CAPTION>
-------------------- ------------------------ ------------------------------------------------------------------
PATENT NO. REG. DATE TITLE
-------------------- ------------------------ ------------------------------------------------------------------
<S> <C> <C>
-------------------- ------------------------ ------------------------------------------------------------------
5861881 January 19, 1999 Interactive computer system providing an interactive
presentation with personalized video, audio and graphics
responses for multiple viewers
-------------------- ------------------------ ------------------------------------------------------------------
-------------------- ------------------------ ------------------------------------------------------------------
5724091 March 3, 1998 Compressed Digital Data Interactive Program System
-------------------- ------------------------ ------------------------------------------------------------------
-------------------- ------------------------ ------------------------------------------------------------------
5682196 October 28, 1997 Three-Dimensional (3D) Video Presentation System Providing
Interactive 3D Presentation with Personalized Audio Responses
for Multiple Viewers
-------------------- ------------------------ ------------------------------------------------------------------
-------------------- ------------------------ ------------------------------------------------------------------
5632007 May 20, 1997 Interactive System and Method for Offering Expert Based
Interactive Programs
-------------------- ------------------------ ------------------------------------------------------------------
-------------------- ------------------------ ------------------------------------------------------------------
5585858 Dec. 17, 1996 Simulcast of Interactive signals with a Conventional Video Signal
-------------------- ------------------------ ------------------------------------------------------------------
-------------------- ------------------------ ------------------------------------------------------------------
5537141 July 16, 1996 Distance Learning System Providing Individual Television
Participation, Audio Responses and Memory for Every Student
-------------------- ------------------------ ------------------------------------------------------------------
-------------------- ------------------------ ------------------------------------------------------------------
RE 34340 (reissue August 10, 1993 Closed Circuit Television System Having Seamless Interactive
of 4918516) Television Programming and Expandable User Participation
-------------------- ------------------------ ------------------------------------------------------------------
-------------------- ------------------------ ------------------------------------------------------------------
5068733 Nov. 26, 1991 Multiple Access Television
-------------------- ------------------------ ------------------------------------------------------------------
-------------------- ------------------------ ------------------------------------------------------------------
4847700 July 11, 1989 Interactive Television System for Providing Full Motion Synched
Compatible Audio/Visual Displays from Transmitted Television
Signals
-------------------- ------------------------ ------------------------------------------------------------------
-------------------- ------------------------ ------------------------------------------------------------------
4847699 July 11, 1989 Method for Providing an Interactive Full Motion Synched
Compatible Audio/Visual Television Display
-------------------- ------------------------ ------------------------------------------------------------------
-------------------- ------------------------ ------------------------------------------------------------------
4847698 July 11, 1989 Interactive Television System for Providing Full Motion Synched
Compatible Audio/Visual displays
-------------------- ------------------------ ------------------------------------------------------------------
-------------------- ------------------------ ------------------------------------------------------------------
4602279 July 22, 1986 Method for Providing Targeted Profile Interactive CATV Displays
-------------------- ------------------------ ------------------------------------------------------------------
-------------------- ------------------------ ------------------------------------------------------------------
4573072 Feb. 25, 1986 Method for Expanding Interactive CATV displayable Choices for a
Given Channel Capacity
-------------------- ------------------------ ------------------------------------------------------------------
-------------------- ------------------------ ------------------------------------------------------------------
19
<PAGE>
-------------------- ------------------------ ------------------------------------------------------------------
4507680 March 26, 1985 One-Way Interactive Multisubscriber Communication System
-------------------- ------------------------ ------------------------------------------------------------------
-------------------- ------------------------ ------------------------------------------------------------------
4264925 April 28, 1981 Interactive Cable Television System
-------------------- ------------------------ ------------------------------------------------------------------
-------------------- ------------------------ ------------------------------------------------------------------
4264924 April 28, 1981 Dedicated Channel Interactive Cable Television System
-------------------- ------------------------ ------------------------------------------------------------------
</TABLE>
ACTV U.S. PENDING APPLICATIONS:
<TABLE>
<CAPTION>
-------------------- ----------------------- ------------------------------------------------------------------------
APPL. NO. APPL. DATE TITLE
-------------------- ----------------------- ------------------------------------------------------------------------
<S> <C> <C>
-------------------- ----------------------- ------------------------------------------------------------------------
08/887314 July 3, 1997 Compressed Digital-Data Interactive Television System with Digital
Delay
-------------------- ----------------------- ------------------------------------------------------------------------
-------------------- ----------------------- ------------------------------------------------------------------------
09/154069 Sept. 16, 1998 Compressed Digital-Data Interactive Television System with Digital
Delay
-------------------- ----------------------- ------------------------------------------------------------------------
-------------------- ----------------------- ------------------------------------------------------------------------
08/815168 March 11, 1997 Digital Interactive System for Providing Full Interactivity with Live
Programming Events
-------------------- ----------------------- ------------------------------------------------------------------------
-------------------- ----------------------- ------------------------------------------------------------------------
09/335372 June 17, 1999 Compressed Digital Seamless Video
-------------------- ----------------------- ------------------------------------------------------------------------
-------------------- ----------------------- ------------------------------------------------------------------------
09/429851 October 28, 1999 Compressed Digital Data Interactive Program System
-------------------- ----------------------- ------------------------------------------------------------------------
-------------------- ----------------------- ------------------------------------------------------------------------
09/429850 October 28, 1999 Compressed Digital Data Interactive Program System
-------------------- ----------------------- ------------------------------------------------------------------------
-------------------- ----------------------- ------------------------------------------------------------------------
09/429852 October 28, 1999 Compressed Digital Data Interactive Program System
-------------------- ----------------------- ------------------------------------------------------------------------
</TABLE>
20
