AGREEMENT
This Agreement is being entered into effective as of February 22, 2000 by the National Football League, National Basketball Association, NBA Properties, Inc., Twentieth Century Fox Film Corporation, Disney Enterprises, Inc., Columbia TriStar Television, Inc., Columbia Pictures Television, Inc., Columbia Pictures Industries, Inc., Metro-Goldwyn-Mayer Studios Inc., Orion Pictures Corporation, Paramount Pictures Corporation, Universal City Studios, Inc., Time Warner Entertainment Company, L.P., ABC, Inc., CBS Broadcasting Inc., Fox Broadcasting Company, and National Broadcasting Company, Inc. (collectively "plaintiffs"), on the one hand, and TVRadio Now, Corp. d/b/a iCraveTV ("TVRadio Now"), William R. Craig, for himself and d/b/a William R. Craig Consulting, and George Simons (collectively "defendants") and John Trickey, Kirby Campbell, and Ian McCallum, on the other hand. (Defendants, along with Messrs. Trickey, Campbell, and McCallum, are collectively referred to as "the iCraveTV parties.")
WHEREAS, starting in November 1999, TVRadio Now established a World Wide Web site, www.icravetv.com, which transmitted, through "streaming" via the Internet, copyrighted works owned by plaintiffs, and used plaintiffs' trademarks, both without their written authorization;
WHEREAS, plaintiffs have filed lawsuits against defendants in the United States District Court for the Western District of Pennsylvania ("the Court"), captioned National Football League, et al. v. TVRadio Now, Corp., et al., No. 00-120, and Twentieth Century Fox Film Corporation, et al. v. iCraveTV, et al., No. 00-121 ("the Lawsuits"), alleging copyright infringement, trademark infringement, and other causes of action based on the allegations set forth in the complaints filed in each of the Lawsuits ("the Claims");
WHEREAS, defendants deny all liability to plaintiffs on the Claims;
WHEREAS, the Court granted a Temporary Restraining Order against defendants in the Lawsuits on January 28, 2000 and a Preliminary Injunction on February 8, 2000;
WHEREAS, the plaintiffs also contend that defendants' activities are in violation of the law of Canada and other countries, and defendants dispute that contention;
WHEREAS, the parties wish to avoid the expense and delay of litigation;
WHEREAS, the parties have agreed to resolve the Lawsuits and their disputes about the iCraveTV parties' activities by entering into this Agreement and by requesting the Court to enter a Permanent Injunction in the Lawsuits;
WHEREAS, the agreed-on resolution does not involve any admission of liability whatsoever by the iCraveTV parties;
WHEREAS, in return for the undertakings set forth below, the plaintiffs have agreed not to pursue claims for substantial monetary relief, in the form of both damages and attorneys' fees;
NOW THEREFORE, in consideration of the promises set forth below, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows:
1. Submission to Court of Permanent Injunction . The parties agree to submit to the Court, and to request that the Court sign and enter, the Permanent Injunction attached hereto as Appendix A.
2. Cessation of conduct . The iCraveTV parties agree that they will not, individually or collectively, whether directly or through any other person or entity, engage in, or facilitate any other person or entity to engage in, any transmission or other dissemination (whether via "streaming" or otherwise) of plaintiffs' copyrighted audiovisual or audio works or any element thereof or derivative work based on those audiovisual or audio works (collectively "Plaintiffs' Works") through the Internet, through any World Wide Web site, or through any other online or wireless technology of any type whatsoever. In consideration of the other benefits being conferred on them by this Agreement, the iCraveTV parties agree that this prohibition shall apply to the iCraveTV parties with respect to such transmission or other dissemination of Plaintiffs' Works to, from, or within any location in the world. The foregoing prohibition shall not apply if, and to the extent that, the iCraveTV parties have obtained the prior written consent of the relevant copyright owner(s) with respect to the transmission or dissemination of the copyrighted work(s) in question. The iCraveTV parties further agree not to infringe or otherwise unlawfully use any of plaintiffs' trademarks or trade names.
3. Stipulation to jurisdiction . Plaintiffs and the iCraveTV parties agree to submit to the jurisdiction of the Court for enforcement of the Permanent Injunction and this Agreement. The iCraveTV parties further agree that, if the Court enters an order enforcing the Permanent Injunction or this Agreement, and if one or more plaintiffs seek enforcement of such an order in the courts of Canada (or of another country in which the relevant iCraveTV party is then located or doing business), the iCraveTV parties will not challenge the authority of the Court to enter such an order or contend that enforcement of such order in Canada or such other country would violate public policy or otherwise be improper.
4. Attorneys' fees . The parties agree that, in addition to any other remedies for breach of this Agreement or violation of the Permanent Injunction, the Court may award reasonable attorneys' fees to the prevailing party with respect to any claimed breach of this Agreement or violation of the Permanent Injunction.
5. Construction of agreement . Each party has had the opportunity to retain competent counsel to assist it in the drafting and/or review of this Agreement, and each party to this Agreement has retained such counsel. The Agreement shall not be construed for or against any party as the draftsperson hereof. No party may use any draft of this Agreement in arguing for or against any interpretation of the Agreement, nor may any decisionmaker use any draft of this Agreement for the purpose of interpreting the Agreement.
6. Miscellaneous . This Agreement may be executed in counterparts and delivery of signatures by facsimile shall be acceptable. The Agreement shall be binding on and inure to the benefit of the parties hereto, their affiliates, divisions, and subsidiaries, and their respective successors and assigns in perpetuity. If any provision of the Agreement is deemed to be invalid or unenforceable, all other provisions shall be severable and shall remain in full force and effect, provided that & & 1 & 8 shall be deemed non-severable. The Agreement shall be governed by the laws of the United States of America and of the Commonwealth of Pennsylvania as the same would be applied by a federal court sitting in the Western District of Pennsylvania.
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Changes in U.S. and/or Canadian law.
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(a) If there is a final determination (as defined below) that (1) the United States Code has been amended in the future to permit persons other than plaintiffs to transmit or otherwise disseminate (whether via "streaming" or otherwise) Plaintiffs' Works through the Internet, through a World Wide Web site, or through another online or wireless technology without the consent of plaintiffs, and (2) such transmissions or other dissemination by defendants will be strictly limited to ultimate recipients in the United States and will not be received by persons in any location outside of the United States, ¶ 2 of this Agreement will not apply to such transmissions or dissemination strictly limited to the United States, and the parties will ask the Court to modify the Permanent Injunction to permit the defendants to engage in such newly authorized activities to the extent consistent with other applicable legal requirements, if any.
(b) If there has been a final determination (as defined below) that (1) the Canadian Federal Court or a provincial superior court has made a determination (which has been confirmed after all available appeals have been taken or as to which the time for taking an appeal has expired) that Canadian federal law permits third parties to transmit or otherwise disseminate (whether via "streaming" or otherwise) Plaintiffs' Works through the Internet, through a World Wide Web site, or through another online or wireless technology without the consent of plaintiffs, and (2) such transmissions or other dissemination by defendants will be strictly limited to ultimate recipients in Canada and will not be received by persons in the United States or any other location outside of Canada, ¶ 2 of this Agreement will not apply to such transmissions or other dissemination strictly limited to Canada; provided that no change in or interpretation of Canadian law shall have any effect on the iCraveTV parties' duties under the Permanent Injunction or provide any basis for a modification of the Permanent Injunction. In addition, this ¶ 7(b) shall not apply to any change in or interpretation of Canadian law that results from prosecution by the iCraveTV parties or any person in active concert or participation with the iCraveTV parties of any pending or future application or request. The term "prosecution [of a] pending or future application or request" shall not include the defense by the iCraveTV parties of a non-collusive lawsuit in court for copyright infringement, trademark infringement, or related claims relating to their Internet transmission activities between November 30, 1999 and January 28, 2000, provided that defendants give written notice to plaintiffs within five business days after defendants become aware of the filing of any such lawsuit and will not oppose intervention by any plaintiff or any trade association of which any plaintiff is a member.
(c) A "final determination" for purposes of this ¶ 7 shall be deemed to occur only if (a) all parties so stipulate in a signed writing, or (b) the Court issues a ruling after full briefing by the parties. A determination is not "final" if a motion for reconsideration is pending, or if a stay petition has been granted by the United States Court of Appeals for the Third Circuit or the United States Supreme Court, or is then pending before either of those Courts.
(d) If there has been a final determination with respect to both U.S. and Canadian law that the events described in ¶¶ 7(a)(1)-(2) and 7(b)(1)-(2) have taken place, defendants may engage in the activities described above within each of those two countries, subject to all of the limitations set forth in ¶ 7(a)-(c).
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Releases .
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(a) As of the effective date of this Agreement, each of the plaintiffs, for itself and on behalf of its subsidiaries, divisions, and affiliates, and the respective officers, directors, shareholders, agents, employees, representatives, partners, attorneys, successors and assigns of each such person or entity, hereby releases each of the iCraveTV parties, their parent corporations, divisions, members, subsidiaries, and affiliates, and the respective officers, directors, employees, representatives, agents, attorneys, successors and assigns of each such person or entity, from any and all claims, demands, debts, damages, liabilities, duties, and causes of action of any kind whatsoever, in law or in equity, whether or not known or previously asserted, which the plaintiffs, their subsidiaries, parent corporations, divisions, partners, and affiliates, and the respective officers, directors, shareholders, agents, employees, representatives, attorneys, successors and assigns of each such person or entity ever had, now have, or hereafter may have relating to or arising out of the activities of defendants alleged in the Claims up to the effective date of this Agreement, or relating to or arising out of the iCraveTV's parties' defense of the Lawsuits or activities related thereto up to the effective date of this Agreement. Nothing in this Agreement releases William R. Craig from the claims pending in case GD-No.-98-3706 (Allegheny Cty., Pennsylvania) or any other claims not relating to the operations of TVRadio Now, Corp. and/or the www.icravetv.com Web site.
(b) As of the effective date of this Agreement, each of the iCraveTV parties, for himself or itself and (in the case of TV Radio Now, Corp.) on behalf of its subsidiaries, divisions, and affiliates, and the respective officers, directors, shareholders, agents, employees, representatives, partners, attorneys, successors and assigns of each such person or entity, hereby releases each of the plaintiffs and the subsidiaries, parent corporations, divisions, owners, affiliates, joint venturers, partners, and members of each plaintiff, along with the respective officers, directors, agents, partners, attorneys, employees, owners, representatives, successors and assigns of each such person or entity, from any and all claims, demands, debts, damages, liabilities, duties, and causes of action of any kind whatsoever, in law or in equity, whether or not known or previously asserted, which the iCraveTV parties, their subsidiaries, parent corporations, divisions, partners, and affiliates, and the respective officers, directors, shareholders, employees, representatives, agents, attorneys, successors and assigns of each such person or entity ever had, now have, or hereafter may have relating to or arising out of the activities of defendants alleged in the Claims up to the effective date of this Agreement, or relating to or arising out of the plaintiffs' initiation and conduct of the Lawsuits or activities related thereto up to the effective date of this Agreement. |
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