{"id":42704,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/promotional-services-and-customer-database-services-and-license.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"promotional-services-and-customer-database-services-and-license","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/promotional-services-and-customer-database-services-and-license.html","title":{"rendered":"Promotional Services and Customer Database Services and License Agreement &#8211; MTV Networks and Blockbuster Inc."},"content":{"rendered":"<pre>\n\n                                      Form \n                                       of\n\n                            PROMOTIONAL SERVICES AND\n                     CUSTOMER DATABASE SERVICES AND LICENSE\n                                    AGREEMENT\n\n\n                                     between\n\n\n                           MTV NETWORKS, a division of\n                            VIACOM INTERNATIONAL INC.\n\n\n                                       and\n\n\n                                BLOCKBUSTER INC.\n\n\n                                   dated as of\n\n\n                                  _______, 1999\n\n\n\n\n\n\n                                TABLE OF CONTENTS\n\nSECTION                                                                     PAGE\n\n\nSECTION 1.  DEFINITIONS........................................................1\n\n\nSECTION 2.  TERM...............................................................1\n\n\nSECTION 3.  PROMOTIONAL SERVICES...............................................1\n\n\nSECTION 4.  LICENSE............................................................2\n\n\nSECTION 5.  CONSIDERATION......................................................3\n\n\nSECTION 6.  MTV OPTION.........................................................3\n\n\nSECTION 7.  TERMINATION........................................................3\n\n\nSECTION 8.  NONEXCLUSIVITY.....................................................4\n\n\nSECTION 9.  NO WARRANTY........................................................4\n\n\nSECTION 10. OWNERSHIP OF CUSTOMER DATABASE.....................................4\n\n\nSECTION 11. CONFIDENTIALITY....................................................5\n\n\nSECTION 12. INJUNCTIVE RELIEF..................................................5\n\n\nSECTION 13. INDEMNIFICATION....................................................5\n\n\nSECTION 14. MISCELLANEOUS......................................................6\n\n\n\n\n         Agreement dated as of _______, 1999 between MTV Networks, a division of\nViacom International Inc., a Delaware corporation ('MTV'), and Blockbuster Inc.,\na Delaware corporation ('BLOCKBUSTER').\n\n                              W I T N E S S E T H:\n\n         WHEREAS, Blockbuster desires to grant to MTV a nonexclusive license to\nuse certain Blockbuster proprietary information, specifically (i) customer names\nand addresses within the United States and (ii) demographic data within the\nUnited States unrelated to customer names and addresses (collectively the\n'Customer Database'); and\n\n         WHEREAS, Blockbuster desires to provide certain promotional services to\nMTV;\n\n         NOW, THEREFORE, in consideration of the mutual promises and agreements\ncontained herein and for other good and valuable consideration, the receipt and\nsufficiency of which is hereby acknowledged, the parties hereby agree as\nfollows:\n\n         SECTION 1. DEFINITIONS. Capitalized terms used and not otherwise\ndefined herein have the meanings set forth in the Initial Public Offering and\nSplit-Off Agreement dated the date hereof among Viacom Inc. ('VIACOM'), Viacom\nInternational Inc. and Blockbuster Inc.\n\n         SECTION 2. TERM. The term of this Agreement shall commence on the date\nhereof and end on June 30, 2000, unless earlier terminated pursuant to Section 7\nor extended pursuant to Section 6.\n\n         SECTION 3. PROMOTIONAL SERVICES. During the Term, Blockbuster shall\nprovide MTV with the following promotional services (the 'PROMOTIONAL\nSERVICES'):\n\n         (a) run a thirty-second advertisement furnished by MTV on its\n         BLOCKBUSTER ENTERTAINMENT NETWORK(R) in all Blockbuster corporate-owned\n         stores in the United States (the 'BLOCKBUSTER STORES'). Blockbuster\n         shall run such MTV advertisement every fifteen minutes during the\n         operating hours of the Blockbuster Stores in each cycle included in the\n         Term.\n\n         (b) feature one advertisement banner furnished by MTV and provide a\n         direct link with an icon to an MTV web site designated by MTV from the\n         home page of Blockbuster's primary web site, www.blockbuster.com, on\n         the internet;\n\n         (c) run one one-half panel advertisement furnished by MTV in a\n         Blockbuster direct mail campaign that is distributed to not less than 6\n         million households during a month mutually agreed upon by Blockbuster\n         and MTV; and\n\n         (d) run one full page advertisement furnished by MTV in the BLOCKBUSTER\n         Rewards(TM) newsletter that is distributed to the members of\n         BLOCKBUSTER Rewards(TM) during a month mutually agreed upon by MTV and\n         Blockbuster.\n\n\n\n         SECTION 4.  LICENSE.\n\n         (a) Blockbuster grants to MTV a nonexclusive license during the Term in\n         the United States (the 'LICENSE') to use internally the Customer\n         Database as updated by Blockbuster or its duly authorized agent from\n         time to time, including without limitation, any modifications,\n         additions or deletions made thereto by Blockbuster or MTV, subject to\n         any limitations of use contained in any agreement between Blockbuster\n         and a third party, of which reasonable notice is provided to MTV.\n\n         (b) MTV may use the Customer Database only for the purposes of\n         conducting Blockbuster's current and future business and sublicensing\n         the Customer Database for internal use only to any Affiliate of Viacom;\n         PROVIDED that any such use by MTV or an Affiliate of Viacom shall\n         comply with any applicable license, law or regulation of any\n         governmental authority, including without limitation, the Video Privacy\n         Protection Act of 1988, as amended, or any state laws governing video\n         privacy.\n\n         (c) Blockbuster or its duly authorized agent shall make the Customer\n         Database available to MTV or an Affiliate of Viacom, as the case may\n         be, at such times, in such format and updated to such times as MTV or\n         an Affiliate of Viacom, as the case may be, may request, except as may\n         be limited by law or by instruction of any customer and as may be\n         reasonably delayed due to technological difficulties or other time\n         constraints that occur in the ordinary course of business; PROVIDED\n         that Blockbuster or its duly authorized agent shall make available to\n         MTV or an Affiliate of Viacom, as the case may be, any portion of such\n         information that is permitted to be made available. MTV acknowledges\n         that Blockbuster or its authorized agent shall make available the\n         information contained in the Customer Database, and not any physical\n         form of the Customer Database containing such information. MTV shall\n         pay to Blockbuster, upon 30 days written notice, any reasonable and\n         incremental out-of-pocket costs incurred by Blockbuster in making the\n         Customer Database available to MTV or an Affiliate of Viacom, as the\n         case may be. MTV or an Affiliate of Viacom, as the case may be, in its\n         sole discretion, may make any modifications, additions or deletions to\n         the Customer Database, subject to (i) any law or (ii) any license\n         rights of any third party, of which reasonable notice is provided to\n         MTV or an Affiliate of Viacom, as the case may be. MTV or an Affiliate\n         of Viacom, as the case may be, shall provide reasonable notification to\n         Blockbuster of any such modifications, additions or deletions that are\n         material, and upon reasonable notice by Blockbuster, MTV or an\n         Affiliate of Viacom, as the case may be, shall make such revised\n         Customer Database available to Blockbuster for its use in conducting\n         its business at no cost to Blockbuster. Subject to Section 10, MTV\n         acknowledges and agrees that it does not own or have any interest in or\n         title to the Customer Database, including as modified, added to or\n         deleted.\n\n         SECTION 5. CONSIDERATION. In consideration of the Promotional Services\nto be provided and the License granted hereunder, MTV shall pay to Blockbuster\n$4.5 million in cash on, or if such date is not a Business Day, on a Business\nDay immediately following, each of\n\n\n                                       2\n\n\nSeptember 10, 1999, December 10, 1999, March 10, 2000 and June 10, 2000 for an\naggregate consideration of $18 million.\n\n         SECTION 6.  MTV OPTION.\n\n         (a) Blockbuster grants to MTV an option (the 'MTV OPTION'), exercisable\n         during the Term upon written notice of five Business Days, to extend\n         the License in perpetuity (the 'PERPETUAL LICENSE') under the terms and\n         conditions of this Agreement. In consideration of the Perpetual\n         License, MTV shall (i) pay to Blockbuster $5 million in cash at the\n         time of exercise and no later than July 10, 2000 and (ii) provide to\n         Blockbuster for internal use its Leisure Time Studies as long as they\n         are commissioned by and produced for MTV or an Affiliate of Viacom.\n\n         (b) At any time during the Term, or after the exercise of the MTV\n         Option, Blockbuster may terminate the License and the MTV Option or the\n         Perpetual License, as the case may be, and any related sublicense, upon\n         written notice of five Business Days. In consideration of such\n         termination, Blockbuster shall pay to MTV $25 million in cash (the 'MTV\n         OPTION CONSIDERATION') no later than 5 Business Days after receipt of\n         such written notice of termination. Upon such termination,\n         Blockbuster's access to MTV's Leisure Time Studies shall also\n         terminate.\n\n         SECTION 7.  TERMINATION.\n\n         (a) Either party may terminate this Agreement, upon written notice of\n         10 Business Days to the other party, if such other party:\n\n                  (i) defaults in the payment when due of any amount payable by\n                  it under this Agreement and such default continues for a\n                  period of thirty days following written notice and such\n                  default is continuing at the time such notice of termination\n                  is given, PROVIDED that in the event Blockbuster fails to pay\n                  to MTV the MTV Option Consideration, the MTV Option or the\n                  Perpetual License, as the case may be, shall not terminate and\n                  continue in full force and effect pursuant to the terms\n                  hereof;\n\n                  (ii) defaults in the performance or observance of its other\n                  material obligations under this Agreement and such default\n                  continues for a period of thirty days following written notice\n                  to such defaulting party and such default is continuing at the\n                  time such notice of termination is given;\n\n                  (iii) takes any action in violation of any video privacy laws;\n\n                  (iv) makes an assignment for the benefit of its creditors or\n                  files or consents to the filing of a petition in bankruptcy;\n\n                  (v) has filed against an involuntary petition in bankruptcy\n                  and such petition is not dismissed within sixty days of such\n                  filing; or\n\n\n                                       3\n\n\n                  (vi) is appointed a receiver or similar official for such\n                  other party or its business, or if such other party seeks to\n                  take advantage of any legislation relating to insolvency,\n                  arrangement or relief of debtors.\n\n                  The provisions of this section are in addition to any other\n                  rights and remedies available to any party in the event of the\n                  breach by the other party of any of its obligations under this\n                  Agreement.\n\n         (b)      Upon termination of this Agreement:\n\n                  (i) the License and the MTV Option or the Perpetual License,\n                  as the case may be, and any related sublicense, shall\n                  terminate;\n\n                  (ii) MTV shall cease to use the Customer Database and shall\n                  promptly return to Blockbuster, or destroy, all copies of the\n                  Customer Database, any original files and copies of the\n                  Customer Database as it has been modified, added to or\n                  deleted, and any extracts made from the Customer Database;\n\n                  (iii) MTV shall execute and deliver to Blockbuster any\n                  document requested by Blockbuster to confirm Blockbuster's\n                  ownership of the Customer Database;\n\n                  (iv) Blockbuster shall promptly return to MTV, or destroy, all\n                  copies of the Leisure Time Studies; and\n\n                  (v) this Agreement shall cease except any obligation which\n                  expressly survives the termination of this Agreement shall\n                  continue in full force and effect subsequent to and\n                  notwithstanding such termination.\n\n         SECTION 8. NONEXCLUSIVITY. Nothing in this Agreement is intended to\nprevent Blockbuster from entering into any license agreement with any other\nthird party with respect to all or any part of the Customer Database.\n\n         SECTION 9. NO WARRANTY. Blockbuster makes no warranty, and MTV makes no\nwarranty, either express or implied, with respect to the Customer Database, or\nthe Leisure Time Studies, respectively, including any warranty of\nmerchantability or fitness for a particular purpose.\n\n         SECTION 10. OWNERSHIP OF CUSTOMER DATABASE. All information contained\nin the Customer Database, including any copies, translations or compilations of\nall or any part thereof, and any revisions, modifications or additions thereto\nmade by Blockbuster or MTV, or an Affiliate of Viacom, as the case may be, are\nand shall remain the sole exclusive property of Blockbuster, except for any\nadditions thereto which are made solely by MTV, or an Affiliate of Viacom, as\nthe case may be, which MTV or an Affiliate of Viacom, as the case may be, shall\nown and shall make available to Blockbuster for its use in conducting its\nbusiness. This Section 10 shall survive the termination of this Agreement.\n\n\n                                       4\n\n\n         SECTION 11. CONFIDENTIALITY. (a) MTV acknowledges that the Customer\nDatabase constitutes valuable, confidential and proprietary information and\ntrade secrets of Blockbuster. Accordingly, MTV shall not, directly or\nindirectly, disclose or divulge to any third party, or permit any third party to\nuse or have access to, any information contained in the Customer Database\nwithout the prior written consent of Blockbuster.\n\n         (b) Blockbuster acknowledges that the Leisure Time Studies constitute\n         valuable, confidential and proprietary information of MTV. Accordingly,\n         Blockbuster shall not, directly or indirectly, disclose or divulge to\n         any third party, or permit any third party to use or have access to,\n         any information contained in the Leisure Time Studies without prior\n         written consent of MTV.\n\n         (c) This Section 11 shall survive the termination of this Agreement.\n\n         SECTION 12. INJUNCTIVE RELIEF. Each party acknowledges that money\ndamages would not adequately compensate the other party in the event of a breach\nby such party of its obligations hereunder and that injunctive relief would be\nessential for the other party to adequately protect itself hereunder.\nAccordingly, each party agrees that, in addition to any other remedies available\nto the other party at law or in equity, the other party shall be entitled to\ninjunctive relief in the event such party is in breach of any covenant or\nagreement contained herein. This Section 12 shall survive the termination of\nthis Agreement.\n\n         SECTION 13.  INDEMNIFICATION.\n\n         (a) Blockbuster and its successors and assigns agree to indemnify and\n         hold harmless MTV, its affiliates, subsidiaries, successors and\n         assigns, and their respective directors, officers, agents and\n         employees, from and against any and all claims, suits, damages, losses,\n         liabilities, obligations, fines, penalties, costs and expenses,\n         including without limitation, legal fees and expenses, incurred by an\n         indemnified party in any action or proceeding between an indemnifying\n         party and an indemnified party or between any third party and an\n         indemnified party (collectively 'LOSS'), arising out of or based on any\n         failure by Blockbuster to perform any of the terms, covenants or\n         conditions of this Agreement. MTV may participate in the defense of the\n         claims by counsel of its own choosing, at its cost and expense. An\n         indemnified party will give prompt notice to an indemnifying party of\n         any occurrence for which it will seek indemnification.\n\n         (b) MTV and its successors and assigns agree to indemnify and hold\n         harmless Blockbuster, its affiliates, subsidiaries, successors and\n         assigns, and their respective directors, officers, agents and\n         employees, from and against any and all Loss, arising out of or based\n         on any failure by MTV to perform any of the terms, covenants or\n         conditions of this Agreement. Blockbuster may participate in the\n         defense of the claims made by counsel of its own choosing, at its cost\n         and expense. An indemnified party will give prompt notice to an\n         indemnifying party of any occurrence for which it will seek\n         indemnification.\n\n\n                                       5\n\n\n         SECTION 14.  MISCELLANEOUS.\n\n         (a) WAIVER. The observance of any term of this Agreement may be waived\n         (either generally or in a particular instance and either retroactively\n         or prospectively) by the party entitle to enforce such term, but such\n         waiver shall be effective only if it is in writing signed by a duly\n         authorized officer of the party against which such waiver is to be\n         asserted. Unless otherwise expressly provided in this Agreement, no\n         delay or omission on the part of any party in exercising any right or\n         privilege under this Agreement shall operate as a waiver thereof, nor\n         shall any waiver on the part of any party of any right or privilege\n         under this Agreement operate as a waiver of any other right or\n         privilege under this Agreement, nor shall any single or partial\n         exercise of any right or privilege preclude any other or future\n         exercise thereof or the exercise of any other right or privilege under\n         this Agreement. No failure by either party to take any action or assert\n         any right or privilege hereunder shall be deemed to be a waiver of such\n         right or privilege in the event of the continuation or repetition of\n         the circumstances giving rise to such right unless expressly waived in\n         writing by the party against whom the existence of such waiver is\n         asserted.\n\n         (b) REFERENCES; CONSTRUCTION. The headings and subheadings contained in\n         this Agreement are solely for the purpose of reference, are not part of\n         the agreement of the parties hereto, and shall not in any way affect\n         the meaning or interpretation of this Agreement. All references to days\n         or months shall be deemed references to calendar days or months. Unless\n         the context otherwise requires, any reference to a 'Section' shall be\n         deemed to refer to a section of this Agreement. The words 'hereof,'\n         'herein' and 'hereunder' and words of similar import referring to this\n         Agreement refer to this Agreement as a whole and not to any particular\n         provision of this Agreement. This Agreement shall be construed without\n         regard to any presumption or rule requiring construction or\n         interpretation against the party drafting or causing the document to be\n         drafted.\n\n         (c) AMENDMENTS. This Agreement shall not be supplemented, amended or\n         modified in any manner whatsoever (including without limitation by\n         course of dealing or of performance or usage of trade) except in\n         writing signed by the parties.\n\n         (d) SUCCESSORS AND ASSIGNMENT. This Agreement shall be binding upon and\n         inure to the benefit of the parties and their respective successors and\n         permitted assigns. This Agreement may not be assigned by any party by\n         operation of law or otherwise without the express written consent of\n         the other party; PROVIDED that MTV may assign its rights and\n         obligations under this Agreement to any Affiliate of Viacom; PROVIDED\n         FURTHER that Blockbuster may assign its rights and obligations under\n         this Agreement to any party who is fully qualified and capable of\n         maintaining, updating and providing the Customer Database to MTV at a\n         level of standard equal to or greater than that with which\n\n\n                                       6\n\n\n         Blockbuster maintained, updated and provided the Customer Database to\n         MTV immediately prior to such assignment.\n\n         (e) SEVERABILITY. Wherever possible, each provision of this Agreement\n         shall be interpreted in such a manner as to be effective and valid\n         under applicable law. If any portion of this Agreement is declared\n         invalid for any reason in any jurisdiction, such declaration shall have\n         no effect upon the remaining portions of this Agreement, which shall\n         continue in full force and effect as if this Agreement had been\n         executed with the invalid portions thereof deleted; PROVIDED that the\n         entirety of this Agreement shall continue in full force and effect in\n         all other jurisdictions.\n\n         (f) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement\n         of the parties hereto with respect to the subject matter hereof and\n         thereof and supersede all prior agreements and undertakings, both\n         written and oral, between the parties with respect to the subject\n         matter hereof and thereof.\n\n         (g) NOTICES. All notices, consents, requests, approvals and other\n         communications provided for or required herein, and all legal process\n         in regard thereto, must be in writing and shall be deemed validly\n         given, made or served, (i) when delivered personally or sent by\n         telecopy to the facsimile number indicated below with a required\n         confirmation copy sent in accordance with subsection (iii) below; or\n         (ii) on the next Business Day after delivery to a nationally-recognized\n         express delivery service with instructions and payment for overnight\n         delivery; or (iii) on the fifth day after deposited in any depository\n         regularly maintained by the United States postal service, postage\n         prepaid, certified or registered mail, return receipt requested,\n         addressed to the following addresses or to such other address as the\n         party to be notified shall have specified to the other party in\n         accordance with this section:\n\n         If to MTV:\n\n                  1515  Broadway\n                  New York New York 10036\n                  Attention: Michael D. Fricklas, General Counsel of Viacom Inc.\n                  Phone Number: 212-258-6070\n                  Fax Number: 212-258-6099\n\n         If to Blockbuster:\n\n                  Blockbuster Inc.\n                  1201 Elm Street\n                  Dallas, Texas 75270\n                  Attention: Ed Stead, General Counsel\n                  Phone Number: 214-854-3499\n                  Fax Number: 214-854-3677\n\n\n                                       7\n\n\n         (h) GOVERNING LAW. This Agreement shall be governed by and construed in\n         accordance with the laws of the State of New York. This Section 14(h)\n         shall survive the termination of this Agreement.\n\n         (i) COUNTERPARTS. This Agreement may be executed in counterparts, each\n         of which shall be deemed an original, and all of which shall constitute\n         one and the same instrument.\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n                                       8\n\n\n\n         IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be\nduly executed and delivered as of the date and year first written above.\n\n\n                                       MTV NETWORKS, a division of\n                                       VIACOM INTERNATIONAL INC.\n\n\n\n                                       By: _______________________________\n                                           Name:\n                                           Title:\n\n\n                                       BLOCKBUSTER INC.\n\n\n\n                                       By: _______________________________\n                                           Name:\n                                           Title:\n\n\n\n                                       9\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6911,9252],"corporate_contracts_industries":[9469,9465],"corporate_contracts_types":[9613,9616],"class_list":["post-42704","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-blockbuster-inc","corporate_contracts_companies-viacom-inc","corporate_contracts_industries-media__rental","corporate_contracts_industries-media__broadcasting","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42704","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=42704"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42704"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42704"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42704"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}