Web Site and Cybercasting Agreement

Web Site and Cybercasting Agreement

This Web Site and Cybercasting Agreement ("Agreement") is made effective as of by and between ("HCI") having an address at and ("TC/3/") having an address at .

WHEREAS, the NCAA has granted HCI the exclusive rights to promote certain NCAA Championships using Cybercasts and a Web Site accessible over the Internet under a License dated of even date herewith (the "License");

WHEREAS, TC/3/, as an independent contractor, desires to create a Web Site for HCI in order to provide access to certain NCAA Championships through the Internet;

WHEREAS, TC/3/ desires to produce and broadcast certain NCAA Championships through the use of Internet Cybercasts;

WHEREAS, the NCAA has licensed HCI to use the NCAA's name, marks, logos, and related phrases as described in the Agreement;

WHEREAS, HCI desires to promote the NCAA Championships using Cybercasts and a Web Site accessible over the Internet and to grant TC/3/ a license to use the Marks in association with such Cybercasts and Web Site;

WHEREAS, the parties have mutually agreed upon the terms and conditions set forth in this Agreement;

Portions of this exhibit marked by [*] have been omitted pursuant to a request for confidential treatment.

NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. DEFINITIONS.

As used in this Agreement, the following terms will have the ascribed meanings:

"Contract Year" means February 15, 1998 through June 30, 1998 for the first Contract Year and thereafter each twelve (12) month period from July 1 through June 30 during the term of this Agreement.

"Cybercasts" means a transmission resulting in the representation, visualization, and/or exhibition of NCAA Championships or Special Events on computers, Set-Top Boxes, Video Game Entertainment Equipment utilizing the Internet or Intercasting technologies as the transmission medium.

"Domain Name" means a name associated with a specific registered address for a computer acting as an information repository on the Internet.

"Internet" means a global information network consisting of interconnected, but independent, computers including, but not limited to, the World Wide Web.

"Marketing Programs" shall have the meaning set forth in Section 5.1.

"Marketing Revenues" shall have the meaning set forth in Section 7.2.

"NCAA Championship(s)" means any tournament organized and/or sanctioned by the NCAA to recognize the champion of any given NCAA sport.

"Set-Top Box(es)" means a computer system connected as is to a television and/or other monitor.

"Special Event(s)" means any nongame event(s) involving NCAA Championships.

"Sports Web Site" means the Web Site developed by TC/3/ with the assistance, and at the direction of, HCI and the NCAA that contains information related to NCAA Championships.

"Video Game Entertainment Equipment" means a video game system that is connected to a television or monitor, or is self-contained and which would permit reception of a Cybercast or access to the Web Site.

"Web Server" means a computer system executing software that makes the Sports Web Site available on the Internet.

"Web Site(s)" means document(s) that consist of text, graphics, sound and/or animation clips and that contain links to other documents either self-contained or located in places elsewhere on the Internet.

2. TERM.

The term of this Agreement shall commence effective as of February 15, 1998 and terminate on June 30, 2001.

3. GRANT OF RIGHTS.

3.1 HCI hereby grants to TC/3/ an exclusive worldwide sublicense to use the NCAA Marks to create and host the NCAA's official Sports Web Site in English on TC/3/'S Sports Web Server or other Web Server designated by TC/3/ for all NCAA Championships.

3.2 HCI hereby grants to TC/3/ a worldwide license to use the NCAA Marks to create, produce, syndicate and broadcast via Cybercasts, in English, on TC/3/'S Sports Web Server or other Web Server designated by TC/3/, all pre-game, play-by-play and post-game commentary for all NCAA Championships.

3.3 In accordance with the foregoing, TC/3/ shall be responsible for:

(a) setting up the Domain Name for the NCAA Championships;

(b) creating the initial page layout, content, content layout, and graphic design for the Sports Web Site;

(c) online promotion of the Sports Web Site;

(d) maintenance and support of the Web Server used for the Sports Web Site;

(e) the monthly delivery of statistical data regarding access logs;

(f) forwarding comments or other communications to the NCAA's prearranged e-mail account;

(g) providing tools for NCAA personnel to update the Web Site via the Internet.

3.4 TC/3/ reserves the right to perform routine maintenance up to once a week.

3.5 TC/3/ agrees that "NCAA Online" shall be acknowledged in the title banner as the presenter on the Web Site.

4. HCI OBLIGATIONS.

4.1 HCI shall provide NCAA documents, photographs, films, statistics and other media and/or information to TC/3/ as reasonably required.

4.2 HCI hereby grants TC/3/, as an independent contractor, a worldwide exclusive license to use the NCAA Marks solely for the term and purposes of this Agreement.

4.3 TC/3/ will have the right to make appropriate references to the NCAA, universities and colleges, and participating teams.

4.4 HCI represents and warrants that it has the right to enter into this Agreement and to grant TC/3/ the rights granted herein.

5. ON-LINE MARKETING PROGRAMS.

5.1 HCI reserves the rights to market, sell and include advertising and/or other promotions, including sales of licensed merchandise.

5.2 The parties agree to develop each Contract Year an NCAA Corporate Partner Marketing Program Package.

5.3 All sales of advertising by TC/3/ hereunder shall be subject to the prior approval of HCI and the NCAA.

5.4 TC/3/ shall place, feature, update and maintain all such Marketing Programs secured by HCI on the Sports Web Site and/or within Cybercasts.

5.5 The parties will mutually agree upon all fees and rates to be charged to third parties for all Marketing Programs and/or advertising.

5.6 As approved by the NCAA, TC/3/ may place its logo on the bottom of every page contained within the Sports Web Site and as part of all Cybercasts.

5.7 Each of HCI and TC/3/ shall use its best efforts to market the Sports Web Site and Cybercasts to potential customers.

6. ACCESS.

For the purposes of this Agreement, HCI shall grant TC/3/ reasonable access to:

(a) NCAA photograph, video, audio, statistical, and print libraries;

(b) players, coaches, and others participating in the NCAA Championships;

(c) NCAA press conferences;

(d) NCAA special events associated with the Championships;

(e) all facilities including hotel rooms;

(f) the Championship events including media passes;

(g) the opportunity to purchase tickets for admission to all NCAA Championships;

(h) public service announcements featuring the URL address for each Championship Cybercast;

(i) signage featuring the URL address for each Championship Cybercast.

7. PAYMENTS.

7.1 HCI shall invoice and attempt collection of all Marketing Revenues due from Marketing Program and/or advertising customers secured by HCI.

7.2 Marketing Revenues and Net Marketing Revenues shall be defined as set forth in the Agreement.

7.3 Each party will be solely responsible for the payment of its employees' compensation.

7.4 Each party shall keep complete and accurate records pertaining to its activities hereunder.

7.5 TC/3/ shall make quarterly financial reports to HCI on or before October 1, January 1 and July 1.

8. INDEMNIFICATION.

8.1 By TC/3/: TC/3/ agrees to indemnify fully and save harmless HCI, the NCAA and their respective officers, agents, employees and member institutions.

8.2 By HCI: HCI agrees to indemnify fully and save harmless TC/3/ and its officers, agents, and employees.

9. INSURANCE.

9.1 Throughout the term of this Agreement, TC/3/ agrees to maintain comprehensive general liability insurance in the amount of Five Million Dollars ($5,000,000) per occurrence.

9.2 Throughout the term of this Agreement, HCI agrees to maintain comprehensive general liability insurance in the amount of Five Million Dollars ($5,000,000) per occurrence.

10. TERMINATION.

10.1 Upon material breach of any obligation by the other party, each party shall have the right to terminate this Agreement by written notice.

10.2 If either party files a bankruptcy petition or ceases to conduct business, it shall be considered a material default.

10.3 HCI reserves the right to terminate this Agreement upon any termination or expiration of its separate agreement with the NCAA.

11. RIGHTS OF THE PARTIES UPON TERMINATION.

11.1 Sections 7 through 13 of this Agreement shall continue to bind the parties after termination.

11.2 In the event of permitted termination by HCI breach, all amounts owed shall become due and payable.

11.3 Upon any event of termination or expiration, ownership of the Sports Web Site shall reside in HCI and/or the NCAA.

12. ASSIGNMENT.

Neither party may assign or subcontract its rights or obligations under this Agreement without prior written consent.

13. MEDIATION AND ARBITRATION.

13.1 The parties shall engage the services of a mediator through the American Arbitration Association.

13.2 If mediation fails, any controversy or claim arising out of or relating to this Agreement shall be settled by arbitration.

14. MISCELLANEOUS.

14.1 This Agreement together with all exhibits and related documents embodies the entire Agreement.

14.2 Modifications and amendments must be in writing and signed by authorized representatives.

14.3 No term or provision shall be deemed waived unless in writing.

14.4 The parties are not partners, joint venturers, or agents of one another.

14.5 TC/3/ will perform its obligations as an independent contractor.

14.6 All notices shall be in writing and addressed as follows:

If to HCI, to:

W. James Host

Host Communications, Inc.

546 East Main Street

Lexington, Kentucky 40508

With copies to:

Marc S. Kidd

Host Communications, Inc.

12221 Merit Drive, Suite 1325

Dallas, Texas 75251

If to TC/3/, to:

Ezra Kucharz, CEO

TC/3/

133 Fayetteville Street

Sixth Floor

Raleigh, North Carolina 27601.

14.7 If any action at law or in equity is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses.

14.8 This Agreement will be governed by the laws of the Commonwealth of Kentucky.

14.9 Any provision prohibited or unenforceable in any jurisdiction shall be ineffective to the extent of such prohibition or unenforceability.

14.10 Section headings are included for convenience of reference only.

14.11 TC/3/ agrees not to attack the title of the NCAA in and to the NCAA Marks and/or the Sports Web Site and Cybercasts, not to misuse or disrepute them, and not to create expenses chargeable to HCI without prior written approval.

14.12 Upon any request by the NCAA, HCI may provide a copy of this Agreement to such person.

14.13 This Agreement shall not be binding upon HCI unless and until executed by its Chief Executive Officer or designee.

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed effective as of the date first written above.

AMENDMENT

This Amendment is made and entered into effective as of February 1, 1999 between HOST COMMUNICATIONS, INC. ("HCI") and TOTAL SPORTS, INC. (f/k/a Total College Communications Company, L.L.C. and herein referred to as "Total").

WHEREAS, the NCAA has granted HCI the exclusive rights to construct, maintain and service an NCAA Merchandise Web Site to be featured and included in www.finalfour.net under HCI's License with the NCAA dated as of February 1, 1998, as amended (the "License"); and

WHEREAS, HCI and Total entered into that certain Web Site and Cybercasting Agreement dated effective as of February 15, 1998; and

WHEREAS, HCI and Total desire to amend the Agreement to permit Total to create a Merchandise Web Site in order to market and sell officially licensed NCAA products through the Internet;

1. Paragraph 3 of the Agreement is hereby amended by the addition of new subparagraph 3.6.

3.6 Subject to and in accordance with HCI's License, HCI hereby grants to Total an exclusive world-wide license to use the NCAA Marks to create and host the official NCAA Merchandise Web Site in English on Total's Sports Web Server or other Web Server designated by Total and approved by HCI and the NCAA.

2. Paragraph 4 of the Agreement is hereby amended by the addition of new sub-paragraph 4.5.

4.5 HCI agrees to cause the NCAA to include www.finalfour.net as a banner during public service announcements to be aired during telecasts of the 1999 and 2000 Men's and Women's Division I Basketball Tournament telecasts by CBS.

3. Paragraph 5 of the Agreement is hereby amended by the addition of new sub-paragraph 5.8.

5.8 In connection with the Merchandise Web Site, Total agrees to pay to HCI a royalty of [*] percent of all revenues collected by Total from items sold through the Merchandise Web Site.

4. All terms defined in the Agreement shall have the same meanings in this Amendment.

Portions of this exhibit marked by [*] have been omitted pursuant to a request for confidential treatment.