{"id":42694,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/production-and-distribution-agreement-earthlink-networks-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"production-and-distribution-agreement-earthlink-networks-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/production-and-distribution-agreement-earthlink-networks-inc.html","title":{"rendered":"Production and Distribution Agreement &#8211; Earthlink Networks Inc. and National Media Corp."},"content":{"rendered":"<pre>\n                     PRODUCTION AND DISTRIBUTION AGREEMENT\n\n\n     THIS PRODUCTION AND DISTRIBUTION AGREEMENT (\"Agreement\") is dated May 6,\n1996 and is between EARTHLINK NETWORK, INC., a California corporation\n(\"EarthLink\"), and NATIONAL MEDIA CORPORATION, a Delaware corporation\n(\"National\").\n\n     The parties wish to set forth in this Agreement the terms upon which \nEarthLink will grant to National certain rights to market and distribute \nEarthLink's proprietary EarthLink Network-Registered Trademark- \nTotalAccess-Trademark- Internet Access software for the Macintosh, Windows 95 \nand Windows 3.1 platforms (such software, as it presently exists and as it \nmay hereafter be modified, collectively referred to as the \"Software\") and \nEarthLink's Internet Access Service (the \"ELN Service\"), all as more \nspecifically set forth herein.\n\n     In consideration of the mutual promises and undertakings set forth\nherein, and intending to be legally bound hereby, the parties agree as follows:\n\n     1.  LICENSE RIGHTS.\n\n              1.1  GRANT OF RIGHTS.  Subject to all of the terms and conditions\nof this Agreement, EarthLink hereby grants to National the following rights\n(collectively, the \"License Rights\"), which National may exercise itself or\nthrough any one or more of its existing and future subsidiaries under its\ncontrol:\n\n                   (a)  EXCLUSIVE MARKETING RIGHTS.  The exclusive right to \nadvertise, promote, market, sell and otherwise distribute the Software and \nthe ELN Service throughout the United States, Canada and such other countries \nas the parties may from time to time agree (collectively, the \"Territory\") \nvia airings, on broadcast, cable, satellite and all other forms of \ntelevision transmission now existing or hereafter developed, of short-form \n(i.e. two minutes running time or less) direct response television \nprogramming; and\n\n                   (b)  USE OF INTELLECTUAL PROPERTY AND PROMOTIONAL MATERIALS.\nIn connection with the exercise of its rights hereunder, and subject to the\nprior approval of EarthLink (which will not be unreasonably withheld or\ndelayed), the nonexclusive right to: (a) use any and all trademarks, trade\nnames, copyrights, trade secrets and other intellectual property rights which\nEarthLink may own or control with respect to the Software and the ELN Service\n(including, without limitation those specifically identified on Schedule I\nattached hereto), and (b) reproduce, copy and otherwise use any and all artwork,\ngraphics and other promotional materials which EarthLink owns or controls with\nrespect to the Software and the ELN Service (\"EarthLink's Promotional\nMaterials\"), copies of all of which EarthLink shall provide to National as soon\nas practicable after the execution of this Agreement.\n\n              1.2  EXCEPTIONS TO EXCLUSIVITY.\n\n                   (a)  AMERICAN INTERACTIVE MEDIA.  The parties acknowledge \nthat, pursuant to preexisting contractual arrangements between EarthLink and \nAmerican Interactive Media (\"AIM\"), EarthLink granted nonexclusive rights to \nAIM to market the Software and the ELN Service in the United States and \nCanada via short-form direct response television programming. EarthLink \nbelieves that AIM has\n\n\n                                      -1-\n\n\n\nNMC.5\/6\/96\n\nconcluded and discontinued all such marketing efforts.  Nonetheless, the License\nRights shall in all events be subject to the valid exercise of such rights by\nAIM so long as AIM shall retain such rights.\n\n                   (b)  GUTHY RENKER CORPORATION.  The parties acknowledge that\nEarthLink has previously granted certain nonexclusive rights to Guthy Renker\nCorporation (\"GRC\") to market the Software and the ELN Service when bundled\nwith other products and services marketed by GRC, such rights to be formally\nacknowledged in writing pursuant to a Distribution Agreement dated on or about\nApril 18, 1996 (the \"GRC Distribution Agreement\").  Accordingly, the License\nRights shall in all events be subject to the valid exercise of the rights\ngranted to GRC under the GRC Distribution Agreement for so long as GRC shall\nretain such rights.\n\n              1.3  LOSS OF EXCLUSIVITY.  In the event that National fails, for a\nperiod of four consecutive weeks, to air the EarthLink Spots as contemplated by\nSections 2.2(a) and (b) of this Agreement in any country within the Territory,\nthen National's -rights -pursuant to Section 1.l of this Agreement shall cease\nbeing exclusive in such country, and EarthLink, by itself or through any\nlicensee, may exercise such rights in such country concurrently with National's\nexercise of such rights.\n\n     2.  PRODUCTION AND AIRING OF EARTHLINK SPOTS.\n\n              2.1  PRODUCTION OF EARTHLINK SPOTS.  National, through its \nemployees, agents and\/or independent contractors, shall write, produce and edit\ntwo television direct response advertisements (collectively, the \"EarthLink\nSpots\"), one of approximately 15 seconds in length (the \"Short Spot\") and one of\napproximately 60 seconds in length (the \"Long Spot\").  National shall bear all\ncosts incurred from and after the date of this Agreement in connection with the\nproduction, editing and airing of the EarthLink Spots.  National shall consult\nwith EarthLink with respect to the production of the EarthLink Spots, each of\nwhich shall be subject to EarthLink's approval, which shall neither be\nunreasonably withheld nor delayed.  To that end, National shall provide\nEarthLink with a review copy of each preliminary version of each of the\nEarthLink Spots as promptly as practicable.\n\n              2.2  AIRING OF EARTHLINK SPOTS.\n\n                   (a)  SHORT SPOT.  During the six-month period immediately\nfollowing EarthLink's approval of the Short Spot, National shall take such\nsteps as are necessary to add such Spot to the beginning or end of each 30-\nminute infomercial which National airs on television in the Territory. \nFollowing the conclusion of such six-month period, National shall air the Short\nSpot in conjunction with each 30-minute infomercial which National airs in the\nTerritory for the balance of the term of this Agreement.\n\n                   (b)  LONG SPOT.  As soon as practicable (but in any event not\nlonger than 90 days) following EarthLink's approval of the Long Spot, National\nshall cause such Spot to be aired within the Territory not less than 50 times\nper week for the balance of the term of this Agreement.\n\n                   (c)  NATIONAL'S EXCLUSIVE (CONTROL).  Except to the extent\nexpressly set forth in Sections 2.2 hereof, National shall have exclusive\ncontrol over and shall be responsible for the broadcast, performance and\ntransmission of the EarthLink Spots within the Territory via broadcast, cable\nand satellite television, at such times, with such frequency, in such markets\nand on such networks and stations as National, in its sole judgment, shall\ndetermine.  National shall have no liability whatsoever to EarthLink arising\nfrom or in connection with any action or determination made by National in the\ngood faith exercise\n\n                                      -2-\n\n\n\nNMC.5\/6\/96\n\n\nof its business judgment regarding the foregoing matters.  Notwithstanding\nanything to the contrary contained in this Section 2.2(d), National shall, as\npromptly as practicable upon the request of EarthLink, discontinue airing the\nEarthLink Spots in conjunction with any 30-minute infomercial which EarthLink,\nin its reasonable business judgment, concludes reflects unfavorably on EarthLink\nor its products and services.\n\n              2.3  SUBSTANTIATION AND DOCUMENTATION OF PRODUCT ATTRIBUTES.  The\nEarthLink Spots shall be based upon such attributes of and claims made about the\nSoftware and the ELN Service as have been documented or substantiated to\nNational's satisfaction.  EarthLink shall be under a continuing obligation to\nprovide (or cause to be provided), at As sole expense, all such documentation\nand substantiation as National shall determine may be necessary to facilitate\ncompliance with all applicable laws governing the advertising and marketing of\nthe Software and the ELN Service.\n\n              2.8. LICENSE OF FOOTAGE.  EarthLink may, without fee, incorporate\nfootage and still images created by or for National in the course of producing\nthe EarthLink Spots into promotional materials to be exhibited at trade shows\nand other promotional events.  EarthLink may further edit and modify such\nmaterials as it deems necessary for such purposes, subject to National's prior\napproval (which shall not be unreasonably withheld or delayed).  National shall\ncooperate with EarthLink in making available all such materials as EarthLink\nshall reasonably request.  National shall retain all right, title and interest\nin all such materials (and all modifications thereof) in accordance with the\nprovisions of Section 5.2 hereof.\n\n     3.  CERTAIN OBLIGATIONS OF EARTHLINK.\n\n              3.1  FULFILLMENT.  EarthLink shall, at its sole expense, be\nresponsible for all order processing, credit card processing, telemarketing,\nwarehousing, fulfillment, customer service, and returns processing in connection\nwith all orders for the Software and the ELN Service placed by customers who\norder in response to the EarthLink Spots (collectively, \"National Customers\"). \nEarthLink shall encode all copies of the Software which are distributed to\nNational Customers with a special code identifying National as the source of the\norder therefor.\n\n              3.2  TECHNICAL SUPPORT.  EarthLink shall, at its sole expense,\nprovide technical support to all end users of the Software distributed to\nNational Customers.  Such technical support shall be consistent with the support\nprovided to existing customers of EarthLink as of the date of this Agreement.\n\n     4.  COMPENSATION.\n\n              4.1  FEE.  EarthLink shall pay a fee to National with respect to\neach National Customer.  Such fee shall be determined in accordance with either\nof the following methods, at the election of National, which shall be\ncommunicated to EarthLink in writing prior to the first airing of an EarthLink\nSpot:\n\n                   (a)  ONE-TIME PAYMENT.  A one-time fee of $45.00 for each\nNational Customer who subscribes to and pays in full for the ELN Service for at\nleast 60 days from the date of registration; or\n\n                   (b)  PERIODIC PAYMENTS.  A fee equal to 7% of EarthLink's\ngross receipts received from each National Customer, such fee to be payable to\nNational for a period of five years from the date on which each such National\nCustomer registers for the ELN Service.\n\n\n                                      -3-\n\nNMC.5\/6\/96\n\n\n              4.2  WARRANTS.\n\n                   (a)  WARRANTS FOR EARTHLINK SP.  EarthLink shall provide\nNational with warrants to purchase 50,000 shares of EarthLink's common stock\nupon EarthLink's approval of the Short Spot and warrants to purchase an\nadditional 50,0OO shares of EarthLink's common stock upon EarthLink's approval\nof the Long Spot.  The exercise price for all such warrants shall be $4.88 per\nshare.\n\n                   (b)  WARRANTS FOR NATIONAL CUSTOMERS.  EarthLink shall\nprovide National with warrants to purchase one share of EarthLink common stock\nfor each National Customer who subscribes to and pays in full for the ELN\nService for at least 60 days from the date of registration, up to a maximum of\nwarrants for 600,000 shares of EarthLink common stock.  The exercise price for\nall such warrants shall be $4.88 per share with respect to all warrants so\nearned on or before December 31, 1997 and the fair market value of EarthLink's\ncommon stock, as determined by EarthLink's Board of Directors, (or, if\nEarthLink's common stock is publicly traded, the then-applicable 30-day average\nclosing price thereof) with respect to all warrants so earned from and after\nJanuary 1, 1998.\n\n                   (c)  OTHER TERMS OF WARRANTS.  All warrants provided to\nNational hereunder shall be in form substantially similar to warrants provided\nto EarthLink's Board of Directors as of the date of this Agreement; PROVIDED,\nhowever, that all such warrants shall contain antidilution provisions reasonably\nacceptable to National.\n\n              4.3  RECORD KEEPING.  REPORTING AND REMITTANCE.  EarthLink shall\nmaintain and retain complete and accurate records of all orders which are\nsubject to the payment of fees and the issuance of warrants hereunder.  So long\nas orders shall continue to be placed, and whether or not any payment of fees or\nissuance of warrants on such orders shall be due hereunder, EarthLink shall\nrender to National on or before the thirtieth day following each month a true\nand correct accounting setting forth the following information for the preceding\nmonth: (i) total National Customers, (ii) gross receipts from National\nCustomers, (iii) EarthLink's calculations determining the fees payable and\nwarrants issuable on orders placed by National Customers (if any).  Each such\naccounting shall be accompanied by the fees payable and the warrants issuable on\norders so reported.\n\n              4.4  INSPECTION AND AUDIT RIGHTS.  All records required to be kept\npursuant to Section 4.3 hereof shall be made available for inspection by\nNational (or its designee) at its expense during normal business hours upon\nreasonable prior notice (which in any event shall not be less than five business\ndays).  National may cause such records to be audited at its expense not more \nthan once in any twelve-month period upon five business days prior notice to\nEarthLink; PROVIDED, however, that if any such audit shall show underpayment of\nfees or underissuance of war-rants due hereunder and such underpayment exceeds\nby more than 5% of the total amount actually due, then EarthLink shall bear the\ncost -of such audit and shall promptly pay all fees and issue all warrants\ndetermined by such audit to be due.\n\n     5.  PROPRIETARY RIGHTS.\n\n              5.1  EARTHLINK'S INTELLECTUAL PROPERTY.\n\n                   (a)  GENERALLY.  Subject to the rights granted to National\nhereunder, all right, title and interest (including, without limitation, all\nrights arising under the United States Trademark Act, 15 U.S.C. Section 1501 et\nseq. (the \"Trademark Act\"), the United States Copyright Act, 17 U.S.C. Section\n101\n\n                                      -4-\n\n\nNMC.5\/6\/96\n\n\net seq. (the \"Copyright Act\"), and all other applicable laws, rules and\nregulations) in and to the Software, the ELN Service, EarthLink's Promotional\nMaterials and all patents, trademarks, trade names, copyrights and trade\nsecrets licensed to National hereunder (collectively, EarthLink's Intellectual\nProperty), is and shall remain the sole property of EarthLink.  Neither National\nnor any third-party shall acquire any right, title or interest in EarthLink's\nIntellectual Property by virtue of this Agreement or otherwise, except to the\nextent expressly provided herein.  Any unauthorized use of EarthLink's\nIntellectual Property by National or any third party shall be deemed an\ninfringement of the rights of EarthLink therein.  National shall not in any way\nor at any time dispute or attack the validity or harm or contest the rights of\nEarthLink in or to any of EarthLink's Intellectual Property.  National shall\ndisplay such notices as may be necessary or, in EarthLink's reasonable judgment,\ndesirable in order to preserve and protect EarthLink's proprietary rights in\nEarthLink's Intellectual Property.\n\n                   (b)  USE OF TRADEMARKS.  National acknowledges that some of\nthe trademarks listed on Schedule I hereto are not owned by EarthLink and\ntherefore are being sublicensed to National hereby.  The trademarks licensed or\nsublicensed to National pursuant to this Agreement may be used by National only\nin connection with advertising EarthLink, the Software and the ELN Service and\nas a means of identifying EarthLink and its licensors as the sources of such\nproducts and services.  Such trademarks may be used only in the form and manner\nspecified in Schedule I hereto (as such schedule may from time to time be\namended), and they may not be removed or altered in any way, whether by change\nof color, typeface, design or otherwise.  Moreover, in order to insure the\nproper use of all such trademarks by National under this Agreement, all\nproposed usages of such trademarks by National shall be submitted to EarthLink\nfor its prior review and approval.\n\n              5.2  NATIONAL'S INTELLECTUAL PROPERTY.  All right, title and\ninterest (including, without limitation, all rights arising under the Copyright\nAct, the Trademark Act and all other applicable laws, rules and regulations) in\nand to the entire editorial, visual, audio, and graphic content of all\nadvertisements and promotional materials developed by National in connection\nwith its activities under this Agreement, including, without limitation, (i) the\nEarthLink Spots and the performances recorded therein, (ii) all raw footage shot\nin the course of producing the EarthLink Spots, (iii) all trademarks developed\nor controlled by National, and (iv) all musical compositions included in the\nEarthLink Spots (collectively, \"National's Intellectual Property\") shall be and\nremain the sole property of National.  Neither EarthLink nor any third party\nshall acquire any right, title or interest in National's Intellectual Property\n- -by virtue of this Agreement or otherwise.  Any unauthorized use of any of\nNational's Intellectual Property by EarthLink or any third party shall be deemed\nan infringement of the rights of National therein.\n\n     6.  SPECIAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF EARTHLINK.\n\n              6.1  REGULATORY REQUIREMENTS.  EarthLink represents, warrants and\ncovenants to National that (i) it has (or, prior to the initial airing of any\nEarthLink Spot, will obtain) all required governmental and regulatory approvals,\nlicenses, permits and consents which are required to market and distribute the\nSoftware and the ELN Service within the Territory and (ii) the Software and the\nELN Service are not prohibited or otherwise restricted from being marketed and\nused in commerce within the Territory.  In the event that any modification to\nthe Software or its labeling, packaging or instructions is or becomes necessary\nin order for it lawfully to be sold anywhere within the Territory, EarthLink\nshall cause such modification to be made at no cost to National.  The foregoing\nshall be a continuing representation, warranty and covenant and shall remain in\nfull force and effect and shall bind EarthLink, and its successors and assigns,\nthroughout the term of this Agreement.\n\n                                      -5-\n\n\nNMC.5\/6\/96\n\n              6.2  PROPRIETARY RIGHTS.  EarthLink represents, warrants and \ncovenants to National that:\n\n                   (a)  EARTHLINK'S INTELLECTUAL PROPERTY.  EarthLink owns or\notherwise controls all right, title and interest in and to EarthLink's\nIntellectual Property and has all necessary licenses, clearances and other\nauthorizations to permit the marketing and distribution of the Software and the\nELN Service as contemplated herein;\n\n                   (b)  POWER AND AUTHORITY.  EarthLink has all necessary power\nand authority to grant to National all of the rights and privileges granted\npursuant to this Agreement;\n\n                   (c)  NO INFRINGEMENT.  Neither the granting of the rights and\nprivileges granted hereunder nor the exercise thereof by National in accordance\nwith the terms of this Agreement will infringe or otherwise violate the\nproprietary rights of any person or entity under any patent, trademark,\ncopyright, trade secret or otherwise; and\n\n                   (d)  NO ADVERSE CLAIMS.  EarthLink (i) has not been and is\nnot, as of the date of this Agreement, a party to any litigation enforcing or\ndefending its rights in, to or with respect to the Software, the ELN Service \nor any of EarthLink's Intellectual Property, (ii) is not aware of any claims or\ndemands made or threatened by any person or entity involving the validity of its\nrights in, to or with respect to the Software, the ELN Service or any of\nEarthLink's Intellectual Property, and (iii) is not aware of any patents,\ntrademarks, copyrights, devices, processes, methods or other intellectual\nproperty rights owned or controlled by any third party which may infringe or be\ninfringed by the Software, the ELN Service or any of EarthLink's Intellectual\nProperty.\n\n     7.  SPECIAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF NATIONAL. \nNational represents, warrants and covenants to EarthLink that:\n\n              7.1  NATIONAL'S INTELLECTUAL PROPERTY.  National owns or otherwise\ncontrols (or, in the case of intellectual property not yet conceived, shall,\nprior to the initial airing of each EarthLink Spot, obtain) all right, title and\ninterest in and to National's Intellectual Property and has or shall have all\nnecessary licenses, clearances and other authorizations to use, in the manner\ncontemplated herein, National's Intellectual Property; and\n\n              7.2  NO INFRINGEMENT.  The use by National of National's\nIntellectual Property as contemplated by this Agreement will not knowingly\ninfringe or otherwise violate the proprietary rights of any person or entity\nunder any patent trademark, copyright, trade secret or otherwise.\n\n     8.  GENERAL REPRESENTATIONS AND WARRANTIES.  Each party represents and\nwarrants to the other as follows:\n\n              8.1  POWER AND AUTHORIZATION.  It has all requisite power and\nauthority (corporate and otherwise) to enter into this Agreement, and has duly\nauthorized by all necessary action the execution and delivery hereof by the\nofficer or individual whose name is signed on its behalf below.\n\n              8.2  NO CONFLICT.  Its execution and delivery of this Agreement\nand the performance of its obligations hereunder, do not and will not conflict\nwith or result in a breach of or a default under its\n\n                                      -6-\n\n\n\nNMC.5\/6\/96\n\norganizational instruments or any other agreement, instrument order, law-or\nregulation applicable to it or by which it may be bound.\n\n              8.3  ENFORCEABILITY.  This Agreement has been duly and validly\nexecuted and delivered by it and constitutes its valid and legally binding\nobligation, enforceable in accordance with its terms, except as enforcement may\nbe limited by bankruptcy, insolvency or other laws of general application\nrelating to or affecting the enforcement of creditors' rights and except as\nenforcement is subject to general equitable principles\n\n     9.  INDEMNIFICATION.\n\n              9.1  BY NATIONAL.  National shall defend, indemnify and hold\nharmless EarthLink, its affiliated companies and their respective officers,\ndirectors, shareholders, employees, licensees, agents, successors and assigns\nfrom and against any and all liabilities and expenses whatsoever, including,\nwithout limitation, claims, damages, judgments, awards, settlements,\ninvestigations, costs, and attorneys fees and disbursements (collectively\n\"Claims\") which any of them may incur or become obligated to pay arising out of\nor resulting from (i) the noncompliance of the EarthLink Spots with any\napplicable law, regulation or order relating to the advertisement and sale of\nthe Software and the ELN Service, (ii) the infringement of the proprietary\nrights of any third party with respect to National's Intellectual Property or\nany television programming aired by National in connection with either of the\nEarthLink Spots, or (iii) the breach by National of any of its\nrepresentations, warranties, covenants, obligations, agreements or duties under\nthis Agreement.\n\n              9.2  BY EARTHLINK.  EarthLink shall defend, indemnify and hold\nharmless National, its affiliated companies and their respective officers,\ndirectors, shareholders, employees, licensees, agents, successors and assigns\nfrom and against any and all Claims which any of them may incur or become\nobligated to pay arising out of or resulting from (i) the use of the Software or\nthe ELN Service, (ii) the infringement of the proprietary rights of any third\nparty with respect to the Software, the ELN Service or any of EarthLink's\nIntellectual Property in the course of the exercise by National of -the rights\ngranted to it under this Agreement, or (iii) the breach by EarthLink of any of\nits representations, warranties, covenants, obligations, agreements or duties\nunder this Agreement.\n\n              9.3  PROCEDURE.  Promptly after learning of the occurrence of any\nevent which may give rise to its rights under the provisions of this section,\nany person seeking to enforce such rights (a \"Claiming Person\") shall give\nwritten notice of such matter to the party against whom enforcement of such\nrights is sought (the \"Indemnifying Party\").  The Claiming Person shall\ncooperate with the Indemnifying Party in the negotiation, compromise and defense\nof any such matter.  The Indemnifying Party shall be in charge of and control\nsuch negotiations, compromise and defense and shall have the right to select\ncounsel with respect thereto, provided that the Indemnifying Party shall\npromptly notify the Claiming Person of all developments in the matter.  In no\nevent shall the Claiming Person compromise or settle any such matter without the\nprior consent of the Indemnifying Party, which shall not be bound by any such\ncompromise or settlement absent its prior consent, which shall not be\nunreasonably withheld or delayed.\n\n     10. TERM.  Unless sooner terminated in accordance with the provisions\nof Section 1 1 hereof, this Agreement shall remain in Full force and effect for\nan initial term of three years, commencing as of the date hereof.  Upon the\nexpiration of such initial term (or any extension thereof), this Agreement shall\nautomatically be extended for an additional period of one year unless, within\nnot less than 30 and not\n\n\n                                      -7-\n\n\n\n\nNMC.5\/6\/96\n\n\nmore than 60 days before the expiration of such initial term (or any \nextension thereof) either party shall give the other written notice of \nnonextension.\n\n     11. TERMINATION.\n\n              11.1 TERMINATION EVENTS.\n\n                   (a)  TERMINATION UPON BREACH.  Either party may terminate \nthis Agreement upon 30 days written notice thereof to the other party upon \nthe breach by the other party of any of its representations, warranties, \ncovenants or agreements contained in this Agreement.  Upon the expiration of \nsuch notice period, this Agreement shall terminate without the need for \nfurther action by either party; PROVIDED, however, that if the breach upon \nwhich such notice of termination is based shall have been fully cured to the \nreasonable satisfaction of the nonbreaching party within such 30-day period, \nthen such notice of termination shall be deemed rescinded, and this \nAgreement shall be deemed reinstated and in full force and effect.  Such \nright of termination shall be in addition to such other rights and remedies \nas the terminating party may have under applicable law.\n\n                   (b)  TERMINATION BY EARTHLINK UPON IMPROPER USE OF\nTRADEMARKS, ETC.  EarthLink may terminate this Agreement upon written notice to\nNational of the breach by National of its obligations with respect to the use\nand depiction of the trademarks licensed (or sublicensed) to National pursuant\nto this Agreement or the breach of any of the representations, warranties or \ncovenants of National to EarthLink set forth min Section 7 hereof.\n\n                   (c)  TERMINATION BY NATIONAL UPON BREACH OF PROPRIETARY\nWARRANTIES, ETC.  National may terminate this Agreement upon written notice to\nEarthLink of the breach of any of the representations, warranties or covenants\nof EarthLink to National set forth in Section thereof.\n\n                   (d)  TERMINATION BY NATIONAL UPON MATERIAL ADVERSE CHANGES. \nNational may terminate this Agreement upon written notice to Earthlink upon\nlearning of the occurrence or existence, at any time during the term hereof, of\nany event or circumstance which, in National's reasonable judgment, materially\nadversely affects National's ability to market and distribute the Software and\nthe ELN Service.  In such case, neither party shall have any claim as against\nthe other arising from such termination (including, without limitation, any\nclaim based on delay, lost profits, or loss of opportunity), all such claims\nhaving been deemed waived, and each party shall be free thereafter to pursue its\nrespective business interests without regard to any of the obligations set forth\nin this Agreement.  Notwithstanding the foregoing, if National terminates this\nAgreement pursuant to this Section 11.1 (d) at any time Within 180 days of the\ncommencement of airings of the EarthLink Spots hereunder, then the warrants\ngranted to National pursuant to Section 4.2(a) hereof shall be subject to pro\nrata reduction by the amount by which such period of airing is less than 180\ndays.\n\n              11.2 RIGHTS AND DUTIES UPON TERMINATION.\n\n                   (a)  GENERALLY.  Except as otherwise provided in Section\n11.2(b) hereof, for a period of six months following the expiration or\ntermination of this Agreement, National shall retain the rights to (i) advertise\nand promote the Software and the ELN Service by means of any media purchased\nprior to the effective date of termination and (ii) use EarthLink's\nIntellectual Property in connection therewith.  Notwithstanding any termination\nof this Agreement, National and EarthLink shall perform as\n\n                                      -8-\n\n\n\nNMC.5\/6\/96\n\nthough this Agreement were still in effect with respect to all existing and \npending orders for the Software and the ELN Service arising from the airing \nof the EarthLink Spots until all such orders are filled and all requests for \nrefunds and replacements received in connection therewith have been \nsatisfactorily honored.  Without limitation of the preceding sentence, \nEarthLink shall remain liable for all fees and warrants which become due \npursuant to the terms of this Agreement with respect to all orders placed by \nNational Customers following the termination of this Agreement.\n\n                   (b)  TERMINATION BASED ON NATIONAL'S MATERIAL OR INTENTIONAL\nBREACH.  In the event that EarthLink terminates this Agreement upon a material\nor intentional breach hereof by National, National shall discontinue further\nairings of the EarthLink Spots as promptly as possible (but in no event longer\nthan three months from the effective date of such termination).\n\n     12. Confidentiality.\n\n              12.1 GENERALLY.  The terms of this Agreement and all customer\nlists, price lists, marketing plans, techniques, methods and data, sales and\ntransaction data, media purchase and placement data, and all other nonpublic\ninformation designated by any party as being confidential or a trade secret,\nwritten (whether in machine readable form or otherwise) or unwritten, shall\nconstitute confidential information of the disclosing party (\"Confidential\nInformation\").  Each party shall hold all Confidential Information in the\nstrictest confidence and shall protect all Confidential Information with the\nsame degree of care that it exercises with respect to its own proprietary\ninformation.  Without the prior written consent of the disclosing party, the\nreceiving party may not use, disclose, divulge or otherwise disseminate any\nConfidential Information to any person or entity, except for the receiving\nparty's attorney and such other professionals as the receiving party may retain\nin order for it to enforce the provisions of this Agreement.\n\n              12.2 EXCEPTIONS.  Notwithstanding Section 12.1 hereof, neither\nparty shall have any obligations with respect to any Confidential Information\nwhich (i) is or becomes within the public domain through no act of such party in\nbreach of this Agreement, (ii) was lawfully in the possession of such party\nwithout any restriction on use or disclosure prior to its disclosure hereunder,\n(iii) is lawfully received from another source subsequent to the date of this\nAgreement without any restriction on use or disclosure, (iv) is disclosed by\norder of any court of competent jurisdiction or other governmental authority\n(PROVIDED in such latter case, however, that the receiving party shall timely\ninform the disclosing party of all such legal or governmental proceedings so\nthat the disclosing party may attempt by appropriate legal means to limit such\ndisclosure, and the receiving party shall further use its best efforts to limit\nthe disclosure and maintain confidentiality to the maximum extent possible).\n\n     13. INDEPENDENT CONTRACTOR.  No party nor any of its officers,\nemployees, agents or representatives is an employee or agent of any other party\nfor any purpose whatsoever.  Rather, each party is and shall at all times remain\nan independent contractor.\n\n     14. FORCE MAJEURE.  Neither EarthLink nor National shall be\nresponsible for any delay or failure to perform any part of this Agreement to\nthe extent that such delay or failure is caused by fire, flood, explosion, war,\nstrike, labor unrest, riot, embargo, act of governmental, civil or military\nauthority, accident, inability to obtain raw materials or supplies, acts or\nomissions of carriers, act of God, or other such contingencies beyond its\ncontrol.  Notice with full details of any such event shall be given to the other\nparty as promptly as practicable after its occurrence.  The affected party shall\nuse due diligence, where\n\n\n                                      -9-\n\n\n\n\npracticable, to minimize the effects of or end any such event so as to\nfacilitate the resumption of full performance hereunder.\n\n     15.  FURTHER ACTIONS.  The parties agree to execute such additional\ndocuments and to perform all such other and further acts as may be necessary or\ndesirable to carry out the purposes and intents of this Agreement.\n\n     16.  LICENSE OF INTELLECTUAL PROPERTY.  This Agreement shall be deemed to\nconstitute an executory contract under which EarthLink is a licensor of\nintellectual property, as to which National may make an election under Section\n365(n) of the United States Bankruptcy Code, 11 U.S.C. Sec. 365(n).\n\n     17.  MISCELLANEOUS.\n\n          17.1 NOTICES.  All notices, requests, instructions, consents and other\ncommunications to be given pursuant to this Agreement shall be in writing and\nshall be deemed received (i) on the same day if delivered in person, by same-day\ncourier or by telegraph, telex or facsimile transmission, (ii) on the next day\nif delivered by overnight mail or courier, or (iii) on the date indicated on the\nreturn receipt, or if there is no such receipt, on the third calendar day\n(excluding Sundays) if delivered by certified or registered mail, postage\nprepaid, to the party for whom intended to the following addresses:\n\n     If to EarthLink:\n\n          EarthLink Network, Inc.\n          3100 New York Drive\n          Pasadena, CA  91107\n          Attention:  Garry Betty\n          FAX:  818\/296-4161\n\n     If to National:\n\n          National Media Corporation\n          1700 Walnut Street\n          Philadelphia, PA  19103-6013\n          Attention:  Marshall A. Fleisher, Esq.\n          FAX:  215\/772-5173\n\n     Each party may by written notice given to the other in accordance with this\nAgreement change the address to which notices to such party are to be delivered.\n\n          17.2 ENTIRE AGREEMENT.  This Agreement contains the entire\nunderstanding of the parties with respect to the subject matter hereof and\nsupersedes all prior agreements and understandings, whether written or oral,\nbetween them with respect to the subject matter hereof.\n\n          17.3 AMENDMENT.  No amendment of this Agreement shall be effective\nunless embodied in a written instrument executed by all of the parties.\n\n\n                                      -10-\n\n\n\n\n          17.4 WAIVER OF BREACH.  The failure of any party hereto at any time to\nenforce any of the provisions of this Agreement shall not be deemed or construed\nto be a waiver of any such provision, nor in any way to affect the validity of\nthis Agreement or any provisions hereof or the right of any party hereto to\nthereafter enforce each and every provision of this Agreement.  No waiver of any\nbreach of any of the provisions of this Agreement shall be effective unless set\nforth in a written instrument executed by the party against whom or which\nenforcement of such waiver is sought; and no waiver of any such breach shall be\nconstrued or deemed to be a waiver of any other or subsequent breach.\n\n          17.5 ASSIGNABILITY.  This Agreement shall be binding on and inure to\nthe benefit of the parties hereto and their respective heirs, representatives,\nsuccessors and assigns; PROVIDED, however, except as otherwise expressly\npermitted hereunder, no party hereto may assign this Agreement or any rights\nhereunder to any person or entity without the prior written consent of the other\nparty, and any attempted assignment without such consent shall be void.\nNotwithstanding the foregoing, it is understood and agreed that National may\nexercise its rights and perform its obligations hereunder through any existing\nor future subsidiary under its control.\n\n          17.6 GOVERNING LAW:  JURISDICTION.  This Agreement shall be governed\nby and construed in accordance with the integral substantive and procedural laws\nof the Commonwealth of Pennsylvania without regard to conflict of laws\nprinciples.  The parties consent to the personal jurisdiction and venue of the\nCourt of Common Pleas of Philadelphia County (Pennsylvania) and the United\nStates District Court for the Eastern District of Pennsylvania and further\nconsent that any process, notice of motion or other application to either such\ncourt or a judge thereof may be served outside the Commonwealth of Pennsylvania\nby registered or certified mail or by personal service, provided that a\nreasonable time for appearance is allowed.\n\n          17.7 SEVERABILITY.  All the provisions of this Agreement are intended\nto be distinct and severable.  If any provision of this Agreement is or is\ndeclared to be invalid or unenforceable in any jurisdiction, it shall be\nineffective in such jurisdiction only to the extent of such invalidity or\nunenforceability.  Such invalidity or unenforceability shall not affect either\nthe balance of such provision, to the extent it is not invalid or unenforceable,\nor the remaining provisions hereof, nor render invalid or unenforceable such\nprovision in any other jurisdiction.\n\n          17.8 SURVIVAL.  The provisions of Sections 4 (compensation) 6 (special\nrepresentations, warranties and covenants of EarthLink), 7 (special\nrepresentations, warranties and covenants of National), 9 (indemnification), \n11.2 (rights upon termination), 12 (confidentiality) and 17.6 (governing law;\njurisdiction) shall survive the termination of this Agreement.\n\n          17.9 HEADINGS AND COUNTERPARTS.  The headings of sections and\nsubsections have been included for convenience only and shall not be considered\nin interpreting this Agreement.  This Agreement may be executed in one or more\ncounterparts, each of which shall be deemed to be an original, and all of which\ntogether shall constitute one and the same Agreement.  This Agreement may be\nexecuted and delivered via electronic facsimile transmission with the same force\nand effect as if it were executed and delivered by the parties simultaneously in\nthe presence of one another.\n\n\n                                      -11-\n\n\nNMC.5\/6\/96\n\n\n     IN WITNESS WHEREOF, the parties have caused this Agreement to be duly \nexecuted on the date first written above.\n\nAttest:                                EARTHLINK NETWORK, INC\n\n\nBy:                                    By: \/s\/ Charles G. Betty\n    -----------------------------          --------------------------------\nTitle:                                 Title:  President\n       --------------------------              ----------------------------\n\n\nAttest:                                NATIONAL MEDIA CORPORATION\n\n\nBy:   \/s\/ Marshall A. Fleisher         By:   \/s\/ Constantinos I. Costalas,\n    -----------------------------          --------------------------------\n    Marshall A. Fleisher,                  Constantinos I. Costalas,\n    Secretary                              Vice Chairman\n\n\n                                      -12-\n\n\n\nNMC.5\/6\/96\n\n                                   SCHEDULE I\n\n      TRADEMARKS, TRADE NAMES AND OTHER PRODUCT AND PROPRIETARY IDENTIFIERS\n\nMarks\n- -----\n\n1. EarthLink Network-Registered Trademark-\n2. TotalAccess-Trademark-\n3. Netscape-Registered Trademark-\n4. Netscape Navigator-Trademark-\n5. Qualcomm's Eudora-Light-Registered Trademark-\n\nAttributions\n- ------------\n\n- -  EarthLink Network-Registered Trademark- and TotalAccess-Trademark- are \n   trademarks of EarthLink Network, Inc.\n\n- -  Navigator-Trademark- is a trademark of Netscape-Registered Trademark- \n   Communications Corporation.\n\n- -  Netscape-Registered Trademark- is a registered trademark of \n   Netscape-Registered Trademark- Communications Corporation.\n\n- -  Eudora-Light-Registered Trademark- is a registered trademark of the \n   University of Illinois Board of Trustees, licensed to Qualcomm Incorporated.\n\n- -  [See attached for Logo-and Trademark Usage Guidelines for Netscape \n   Navigator-Registered Trademark-]\n\n\n\n\n\n\n\n\n\n\n\n                                      -13-\n\n\n\n[NETSCAPE-LOGO]\n                         NETSCAPE NAVIGATOR-TM- INCLUDED\n\n                       LOGO AND TRADEMARK USAGE GUIDELINES\n\n- -------------------------------------------------------------------------------\n\n[NETSCAPE NAVIGATOR-LOGO]\n\n1.   QUALIFICATION\n\n          THE NETSCAPE NAVIGATOR INCLUDED LOGO MAY ONLY BE USED BY LICENSED\n          THIRD PARTIES (OEM'S) TO INDICATE THAT NETSCAPE NAVIGATOR-TM- SOFTWARE\n          IS INCLUDED IN AN OEM'S BRANDED PRODUCT.  THE USAGE OF THE LOGO MUST\n          COMPLY WITH ALL OF THESE GUIDELINES.  NO USE OF THE LOGO SHOULD IMPLY\n          THAT NETSCAPE COMMUNICATIONS EITHER WARRANTS OR SUPPORTS THE OEM\n          BRANDED PRODUCT.\n\n2.   REQUIRED USAGE OF THE \"NETSCAPE NAVIGATOR-TM- INCLUDED\" LOGO\n\n       A. IN PRODUCT PACKAGING\n\n          PLACEMENT:  The logo must appear on the front of the product package.\n          The logo may appear on the spine and\/or back of the product package.\n          The logo must be placed on a high contrast background and must stand-\n          alone in making a commercial impression.  The logo must not touch or\n          overlap any other logo on the packaging.\n\n          SIZE:  The N-graphic portion of Netscape Navigator Included logo must\n          be at least 3\/4\" on each side.  Always size the logo proportionally\n          based on the size of the N-graphic.\n\n          For CD-ROMs and CD-ROM jewel case size packaging, the minimum size of\n          the N-graphic portion of Netscape Navigator Included logo must be at\n          least 1\/2\" on each side.\n\n          The logo may be no larger than the OEM brand or product name or logo\n          on the package.  The N-graphic portion of the logo may never exceed \n          1 1\/2\" on each side.\n\n       B. IN PRINT, ONLINE, AND BROADCAST ADVERTISING AND DIRECT MAIL:\n\n          PLACEMENT:  The logo must be on a high contrast background and stand-\n          alone in making a commercial impression.  The logo must not touch or\n          overlap any other logo on the advertisement.  In print advertising and\n          direct mail, the logo must appear in every viewing plane (i.e. page,\n          spread or gatefold) of the ad.  In broadcast advertising, the logo\n          must be on screen for at least 5 seconds and totally within the title-\n          safe screen area.\n\n          SIZE:  For all print applications, the N-graphic portion of Netscape\n          Navigator Included logo must be at least 3\/4\".  The logo may be no\n          larger than the OEM brand or product name or logo in the printed\n          material.  In addition, the graphic portion of the logo may never\n          exceed 1 1\/2\" on each side.\n\n          For all broadcast applications, the logo must be a minimum of 15% of\n          the title safe area.  The logo may be no larger than the OEM brand or\n          product name or logo in the broadcast advertisement.\n\n          For all online advertising, the N-graphic portion of Netscape\n          Navigator Included logo must be at least 30 pixels on each side and\n          must link to the Netscape site at this URL:  \"www.netscape.com\"\n\n3.   OPTIONAL USAGE:  IN PRODUCT BROCHURES AND OTHER COLLATERAL:\n\n          PLACEMENT:  The logo must be displayed on the first page of all\n          brochures and on the cover of all manuals and bound collateral.  The\n          logo must be on a high contrast background and stand-alone in making a\n          commercial impression.\n\n          SIZE:  The N-graphic portion of Netscape Navigator Included logo must\n          be at least 3\/4\".  The logo may be no larger than the OEM brand or\n          product name or logo.  In addition, the N-graphic portion of the logo\n          may never exceed 1 1\/2\" on each side.  The logo may be no larger than\n          the OEM brand or product name or logo in the collateral.\n\n\n\n\n\n4.   ALTERING OF THE LOGO\n\n          The logo may only be reproduced directly from the diskette, provided\n          by Netscape in this kit.  It may not be altered in color, shape, font,\n          proportion or in any other manner.  The logo may be increased in size,\n          but only in whole and in proportion to the original.\n\n5.   TRADEMARK CREDIT:\n\n          In all usage the Netscape Navigator Included  logo should always be\n          identified as a trademark of Netscape Communications Corporation with\n          the following credit line:  NETSCAPE NAVIGATOR AND THE NETSCAPE\n          NAVIGATOR INCLUDED LOGO ARE TRADEMARKS OF NETSCAPE COMMUNICATIONS.\n\n6.   STANDARDS AND QUALITY:  The Netscape Navigator Included logo must be\n          displayed in a positive manner.  The logo may not depict Netscape in \n          any negative way.\n\n- --------------------------------------------------------------------------------\n\nNETSCAPE NAVIGATOR-TM- NAME USAGE GUIDELINES\n\n     THESE GUIDELINES APPLY TO PRINTED COLLATERAL, ADVERTISING, POINT OF SALE\n     MATERIAL, RETAIL PACKAGING, ALL ON-LINE COMMUNICATIONS, ICONS AND ALL OTHER\n     MEDIA.\n\n          The OEM must always represent the product as \"Including\", \"containing\"\n          or \"with\" Netscape Navigator software.\n\n          The OEM must brand the product as their own.  The words \"Netscape\" or\n          \"Netscape Navigator\" may NOT appear in the product or brand name.\n\n               EXAMPLES OF CORRECT USAGE:\n\n                    XYZ Online Kit containing Netscape Navigator-TM- Internet\n                      client.\n                    ABC internet Suite with Netscape Navigator-TM- software,\n                      Smallmail e-mail and MyStack software.\n                    123 Company's Family Internet Fun-pak.  Netscape Navigator\n                      Internet client included.\n\n               EXAMPLES OF INCORRECT USAGE:\n\n                    XYZ Netscape Browser\n                    The Netscape Navigator from ABC Company\n                    123 Internet Navigator\n                    ABC Netscape Navigator\n\n          The words \"Netscape Navigator\" should always be used together to\n          represent the Internet client product supplied by Netscape.  Never use\n          the term, Netscape, Mozilla or Mosaic to refer to the Netscape\n          Navigator product.\n\n          The Netscape Navigator name should always be used as a adjective\n          followed by an appropriate noun.  Appropriate nouns are:  Internet\n          client and software.  Browser is NOT an appropriate noun. Never use\n          Netscape or Netscape Navigator as a verb or noun.\n\n               EXAMPLES OF CORRECT USAGE:\n\n                    \"...includes the Netscape Navigator-TM- Internet client.\"\n                    \"...with Netscape Navigator-TM- software, you can view...\"\n\n               EXAMPLES OF INCORRECT USAGE:\n\n                    \"Includes the Netscape browser...\"\n                    \"with Navigator, you can view...\"\n                    \"Includes Netscape's Mosaic-like Navigator...\"\n                    \"Just use Netscape to view this...\"\n                    \"You can Netscape from your home PC...\"\n\n          FONT SIZE:  In all media, the size of the font of the words Netscape\n          Navigator should be no larger than the font of the brand or product\n          name of the OEM product.\n\n          SUPPORT:  The OEM may NOT indicate in any way that the product is\n          supported or warranted directly by Netscape Communications\n          Corporation.\n\n          TRADEMARK CREDIT:  Netscape Navigator software should always be\n          identified as a trademark of Netscape Communications Corporation with\n          the following credit line:  NETSCAPE NAVIGATOR IS A TRADEMARK OF\n          NETSCAPE COMMUNICATIONS.\n\n          STANDARDS AND QUALITY:  The Netscape Navigator name must be used in a\n          positive manner.  The name may not depict Netscape in any negative\n          way.\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7397],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9613,9619],"class_list":["post-42694","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-earthlink-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42694","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42694"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42694"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42694"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42694"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}