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Enron Mail |
Mark, what are your thoughts on attached from EOL perspective? Envera's
proposal is inconsistent with Enron legal policy on punitive, consequential, lost profit type damages. Please let me know your thoughts. Thanks, NJD Nora J. Dobin Senior Counsel Enron Global Finance Enron Corp. 1400 Smith Street Houston, Texas 77002 713/345-7723 (phone) 713/853-9252 (fax) E-mail: nora.dobin@enron.com ----- Forwarded by Nora Dobin/Corp/Enron on 01/11/01 09:59 AM ----- "Harvey, Dean" <dharvey@velaw.com< 01/11/01 09:56 AM To: "Dobin, Nora (Enron)" <nora.dobin@enron.com< cc: Subject: FW: Linking Agreements - Indemnity Issue -----Original Message----- From: Pond, Jonathan [mailto:JPond@hunton.com] Sent: Thursday, January 11, 2001 9:36 AM To: Alderden, Emily; Stockbridge, Edward T; 'Harvey, Dean' Cc: 'michael.a.robison@enron.com'; 'douglas.s.friedman@enron.com'; 'suresh.raghavan@dealbench.com'; 'Biff Pusey (E-mail)'; 'Mike Giesler (E-mail)'; LeBey, Daniel Subject: Linking Agreements - Indemnity Issue Envera still has an issue with the indemnity offered under the Linking Agreements. As we discussed in our conference yesterday, Envera cannot permit DealBench or EnronOnline to disclaim consequential damages that may be payable to a plaintiff in a trademark infringement action. Envera is not seeking to recover Envera's own lost profits or consequential damages, just those that Envera must pay to a plaintiff in an infringement action. Envera's request is that a statement be added to the indemnity section clarifying that any damages awarded in a final judgment or paid in settlement of an infringement claim be deemed "direct" damages. Dean stated in yesterday's e-mail that DealBench, as a matter of policy, does not agree to such requests. After some discussion among Envera business people, Envera is uncomfortable with the position taken by DealBench and Enron on this issue. If DealBench and Enron are not prepared to stand behind the trademarks that they so vigorously protect in the Linking Agreements, then Envera is not prepared to shoulder the risk that Envera would be required come out of pocket for a plaintiff's lost profits. Envera is not able to control the risk that EnronOnline and DealBench have chosen infringing trademarks, other than by not establishing the links at all. If the concern of DealBench and EnronOnline is that they could be required to pay punitive damages that arise from Envera's misuse of the trademarks, this eventuality is already covered in the indemnity provision. Neither party is required to indemnify Envera for infringement claims based upon any use of the marks not expressly authorized under the Linking Agreements. I have attached drafts of the two Linking Agreements, marked to show the language that Envera would like added to Section 4©. Please review the proposed changes and let me know whether they are acceptable to DealBench and EnronOnline. If not, Envera will need to consider whether it will even establish the links. Regards, Jonathan Jonathan R. Pond HUNTON & WILLIAMS Riverfront Plaza, East Tower 951 E. Byrd Street Richmond, Virginia 23219 DIRECT DIAL: 804 * 788 * 8598 FAX: 804 * 788 * 8218 MOBILE: 804 * 647 * 7871 EMAIL: jpond@hunton.com This message is confidential and subject to the attorney-client privilege. If you have received it in error, please notify the sender by return e-mail and destroy the message and any attachments. <<11 Jan DealBench Linking Agreement - H&W.doc<< <<11 Jan EOL Linking Agreement - H&W.doc<< ++++++CONFIDENTIALITY NOTICE+++++ The information in this email may be confidential and/or privileged. This email is intended to be reviewed by only the individual or organization named above. If you are not the intended recipient or an authorized representative of the intended recipient, you are hereby notified that any review, dissemination or copying of this email and its attachments, if any, or the information contained herein is prohibited. If you have received this email in error, please immediately notify the sender by return email and delete this email from your system. Thank You - 11 Jan DealBench Linking Agreement - H&W.doc - 11 Jan EOL Linking Agreement - H&W.doc
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