NETWORK UNDER THIS SECTION WITHOUT
NETWORK'S CONSENT.
H.
NOTWITHSTANDING ANY OTHER PROVISION IN
THIS AGREEMENT, NETWORK SHALL NOT HAVE ANY LIABILITY TO AFFILIATE OR ANY OTHER
PARTY WITH RESPECT TO ANY FAILURE OF NETWORK AND/OR A DIGITAL PROVIDER TO
DELIVER THE PLEASURE SERVICE IF SUCH FAILURE IS DUE TO ANY MALFUNCTION OR
FAILURE OF THE EQUIPMENT OR FACILITIES OF NETWORK AND/OR THE DIGITAL PROVIDER
AND/OR ANY THIRD PARTY, ANY ACTION OR CLAIM BY AN THIRD PARTY, ANY LABOR DISPUTE
OR ANY OTHER CAUSE BEYOND NETWORK'S AND/OR THE DIGITAL PROVIDER'S REASONABLE
CONTROL.
I.
SUBJECT TO THE PROVISIONS OF THIS
SECTION 11 GOVERNING INDEMNIFICATION WITH RESPECT TO CLAIMS ASSERTED AND
PROCEEDINGS COMMENCED BY THIRD PARTIES, UNDER NO OTHER CIRCUMSTANCES WHATSOEVER
SHALL EITHER PARTY OR ANY AFFILIATE OR REPRESENTATIVE OF EITHER PARTY BE LIABLE
FOR ANY EXEMPLARY, OR CONSEQUENTIAL DAMAGES TO THE OTHER PARTY (INCLUDING
WITHOUT LIMITATION, ANY PAYMENT FOR FUTURE PROFITS OR LOSS OF GOODWILL), WHETHER
FORESEEABLE OR NOT, CLAIMS UNDER DEALER TERMINATION, PROTECTION, NON-RENEWAL OR
SIMILAR LAWS, FOR ANY CAUSE WHATSOEVER WHETHER OR NOT CAUSED BY A PARTY'S
NEGLIGENCE OR GROSS NEGLIGENCE, EXCLUDING ONLY ANY CAUSED BY WILFUL MISCONDUCT.
UNDER NO CIRCUMSTANCES SHALL ANY PROJECTIONS OR FORECASTS BY EITHER PARTY BE
BINDING AS COMMITMENTS OR PROMISES BY EITHER PARTY OR OTHERWISE GIVE RISE TO ANY
LIABILITY.
12.
TERM OF AGREEMENT.
A.
THE INITIAL TERM OF THIS AGREEMENT
SHALL COMMENCE ON [***] AND SHALL END ON [***].
B.
ON THE EXPIRATION DATE OF THE INITIAL
TERM, THIS AGREEMENT SHALL AUTOMATICALLY BE RENEWED FOR SUCCESSIVE [***] RENEWAL
TERMS UNLESS:
(I)
EITHER PARTY GIVES THE OTHER PARTY
NOTICE ELECTING TO TERMINATE THIS AGREEMENT, AND SUCH NOTICE IS GIVEN AT LEAST
[***] PRIOR TO THE EXPIRATION OF THE THEN CURRENT TERM; OR
(II)
THIS AGREEMENT HAS OTHERWISE BEEN
TERMINATED IN ACCORDANCE WITH ITS PROVISIONS.
13
Portions of this Exhibit have been redacted pursuant to a request for
confidential treatment under Rule 24b-2 of the General Rules and Regulations
under the Securities Exchange Act.
Omitted information, marked "[***]" in this
Exhibit, has been filed with the Securities and Exchange Commission together
with such request for confidential treatment.
C.
IN ADDITION TO ANY OTHER REMEDIES IT
MAY HAVE IN LAW OR IN EQUITY, NETWORK OR AFFILIATE MAY TERMINATE THIS AGREEMENT,
BY THE GIVING THE OTHER AT LEAST [***] PRIOR WRITTEN NOTICE, IN THE EVENT THAT
THE OTHER PARTY HAS BREACHED ANY OF ITS OBLIGATIONS HEREUNDER AND SUCH BREACH
(WHICH SHALL BE SPECIFIED IN SUCH NOTICE) IS NOT CURED BY THE APPLICABLE PARTY
WITHIN [***] AFTER SUCH NOTICE IS GIVEN.
13.
GOVERNING LAW.
THIS AGREEMENT SHALL BE
GOVERNED BY AND INTERPRETED UNDER THE LAWS OF THE STATE OF DELAWARE.
14.
ASSIGNMENT.
EXCEPT BY OPERATION OF LAW,
NEITHER PARTY SHALL ASSIGN THIS AGREEMENT WITHOUT THE EXPRESS WRITTEN CONSENT OF
THE OTHER, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD, DELAYED OR
CONDITIONED, PROVIDED THAT, IF, AS A RESULT OF SUCH ASSIGNMENT BY NETWORK THE
PLEASURE SERVICE SHALL NO LONGER BE GENERALLY IDENTIFIED AS "PLEASURE" BY OR
THROUGH THE USE