AMENDED AND RESTATED
AP EXPRESS AGREEMENT
BETWEEN
PRESS ASSOCIATION, INC.
AND
VIDEO BROADCASTING CORPORATION.
----------------------------
Dated as of November 1, 1992
TABLE OF CONTENTS
Page
----
1. TERMINATION OF 1990 AMENDED AND RESTATED AGREEMENT 2
2. SERVICES............................................. 2
2.1 Use of Network................................. 2
2.2 Addition/Deletion of VBC Subscribers........... 4
2.3 Restricted Access and Security................. 4
3. EQUIPMENT MAINTENANCE................................ 4
3.1 Maintenance.................................... 4
3.2 Out-of-Scope Maintenance....................... 5
4. REGULAR CHARGES; ADJUSTMENTS; PAYMENT POLICIES....... 5
THE CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
5. NEWS ORGANIZATIONS, TRADE ASSOCIATIONS,
NON-NEWS ORGANIZATIONS............................... 7
6. TERM AND TERMINATION OF AGREEMENT.................... 7
6.1 Commencement................................... 7
6.2 Basic Term..................................... 7
6.3 Material Breach by VBC......................... 8
6.4 Material Breach by Press Association........... 8
7. INDEPENDENT SUBSCRIBER AGREEMENTS.................... 9
8. INDEMNIFICATION...................................... 9
8.1 Indemnification of VBC......................... 9
8.2 Indemnification of Press Association........... 9
9. REPRESENTATIONS AND WARRANTIES OF PRESS ASSOCIATION. 9
10. REPRESENTATIONS AND WARRANTIES OF VBC................ 10
11. LIMITS ON LIABILITY.................................. 11
12. PERFORMANCE SUBJECT TO LAWS.......................... 11
13. RELATION OF PARTIES.................................. 11
14. RIGHT OF FIRST REFUSAL............................... 12
15. ASSIGNMENTS.......................................... 12
16. NON-SOLICITATION..................................... 12
17. ADVERTISING AND PUBLICITY............................ 12
18. MISCELLANEOUS........................................ 12
18.1 No Waiver...................................... 12
18.2 Governing Law.................................. 13
18.3 Notices........................................ 13
18.4 Confidentiality................................ 14
18.5 Entire Agreement............................... 14
18.6 Descriptive Headings........................... 14
18.7 Submission to Jurisdiction..................... 14
18.8 Shipment of Printers; Installations............ 14
18.9 Counterparts................................... 15
EXHIBITS
Exhibit A Description of Network
Exhibit B Form of Logo
Exhibit C Request Form
Exhibit D Out-of-Scope Service Rates
THIS AMENDED AND RESTATED AGREEMENT, made as of this 1st day of November,
1992, between PRESS ASSOCIATION, INC. ("Press Association"), a New York
corporation with offices at 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and
VIDEO BROADCASTING CORPORATION, doing business as MEDIALINK and PROGRAMLINK
("VBC"), a Delaware corporation with offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
WITNESSETH:
WHEREAS, Press Association is a wholly-owned subsidiary of The Associated
Press, and is engaged in the business of collecting and disseminating general
news of local, national, and international importance; and
WHEREAS, Press Association, in connection with the performance of such news
collection and dissemination functions, operates the AP Express network for use
by certain newsrooms as described in Exhibit A (the "Network") and presently
transmits to broadcast licensees certain news and news-related items ("PA
News-Related Data") provided to Press Association by news organizations ("News
Organizations") and broadcast industry trade associations ("Trade
Associations"); and
WHEREAS, Press Association has surplus capacity within the Network and
shares the use of such capacity and the cost of such use with News Organizations
and Trade Associations; and
WHEREAS, VBC is engaged in the business of providing organizations
("non-News Organizations") which produce publicity and public relations
materials ("VBC Information") for distribution to television stations with the
opportunity to transmit VBC Information and, accordingly, desires to share the
surplus capacity within the Network; and
WHEREAS, Press Association desires to share the surplus capacity within the
Network with VBC, and in consideration for the commitments that VBC had made to
the Network as set forth herein, Press Association desires to enter into this
amended and restated Agreement; and
WHEREAS, the parties agree that in order to provide News Organizations,
Trade Associations and non-News Organizations with the highest quality service
possible, Press Association shall have the exclusive right to distribute PA News
Related Data for News Organizations and Trade Associations, while VBC shall have
the exclusive right to distribute VBC Information for non-News Organizations;
WHEREAS, the parties entered into an Agreement dated as of November 1, 1987
("November 1987 Agreement") and an Amended and Restated Agreement dated as of
April 30, 1990 (the "1990 Amended and Restated Agreement"), and are interested
in further amending and restating the November 1987 Agreement, subject to the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
1. TERMINATION OF 1990 AMENDED AND RESTATED AGREEMENT
The parties acknowledge and agree that the 1990 Amended and Restated
Agreement will terminate upon execution of this Agreement. This Agreement will
supersede the 1990 Amended and Restated Agreement for all purposes.
2. SERVICES
2.1 Use of Network.
(a) Press Association shall establish the Network, in accordance with
Exhibit A, which shall consist of, among other things, the placement of
Receivers (as defined in Exhibit A) in a minimum of 600 television stations
("Receive Points"). Subject to the terms of this Agreement, VBC is hereby
granted the right to use the Network to transmit VBC Information.
(b) If a television station requests that Press Association terminate
delivery of VBC Information to such station, Press Association will promptly
provide VBC with notice of such request, and VBC shall have 30 business days
from the date of such notice to acquire the written permission from such station
to continue to receive VBC Information. VBC will deliver a copy of such written
approval to Press Association. If no such written approval is furnished to Press
Association at the end of such 30 day period, Press Association will no longer
provide VBC Information to such television station.
(c) Press Association hereby agrees to share up to 50% of the transmission
capacity of the Network with VBC in order to enable VBC to transmit VBC
Information solely to television newsrooms (the "Receive Points").
(d) Press Association shall transmit VBC Information in accordance with the
specifications set forth on Exhibit A annexed hereto and made a part hereof.
Transmission of satellite publicity advisories ("Satellite Publicity
Advisories"), and video publicity advisories ("Video Publicity Advisories") (the
"Advisories") shall conform to the statements or guidelines adopted by Press
Association for its newswire transmissions.
2
(e) VBC shall have the exclusive right to market VBC Information for
distribution over the Network. VBC expressly acknowledges and agrees that
customers of AP Express Newspaper Network may elect to send the same information
as it is being sent over the AP Express Newspaper Network via the Network to
Receive Points with the permission of such Receive Points. For purposes of this
Paragraph of this Agreement, the "AP Express Newspaper Network" is a shared data
network for broadcast, cable and direct broadcast satellite television networks
primarily for delivery of material to non-broadcast interests such as
newspapers, trade publications and related parties.
(f) Both Press Association and VBC hereby agree that they and their
affiliates will transmit no more than 10,000 words per day of textual material
other than Advisories ("non-Advisory Material") to any Receive Point which has
only one Receiver. If VBC desires to transmit more than 10,000 words per day of
non-Advisory Material, it must request an Additional Receiver ("Additional
Receiver") for such transmissions chargeable to VBC in accordance with Section
4.1 hereof. If Press Association desires to transmit more than 10,000 words per
day of non-Advisory Material, it must install an Additional Receiver for such
transmissions at no cost to VBC, unless the parties agree that VBC shall also
transmit non-Advisory Material to such additional receiver, in which case such
receiver shall be deemed to be an Additional Receiver chargeable to VBC in
accordance with Section 4.1 hereof. VBC shall not be charged for any Receiver
unless the installation thereof is expressly agreed to by VBC. Notwithstanding
the foregoing, the parties may at any time mutually agree to add Additional
Receivers to the Network.
(g) The form of logo and label to be used by VBC on the Receivers (printers
only) shall be substantially in the form of Exhibit B annexed hereto. Press
Association agrees that upon installation each Receiver shall have affixed to it
such form of logo and label.
(h) Press Association shall retain title to all Equipment provided by Press
Association under this Agreement.
(i) VBC hereby agrees to provide all non-News Organizations with access to
the Network at a rate determined by VBC in its sole discretion.
(j) The parties may mutually agree in writing from time to time that
certain Receive Points on the Network for which AP has installed a Receiver will
not be deemed to be included in the 600 Receive Points that are used for
purposes of calculating the guaranteed minimum monthly payments made pursuant to
Section 4.1(a) hereof.
3
2.2 Addition/Deletion of VBC Subscribers.
(a) A Receive Point may be designated for inclusion within the Network by
VBC at the rates established herein. The minimum interval required for such
inclusions will be (i) five business days from receipt of written notice to
include an additional Receive Point at a location where there is an existing
Receive Point and (ii) 30 business days to add a Receive Point to the Network at
a location that does not have an existing Receive Point. If such added Receive
Point location requires third party services, such as telephone company
circuits, in order to be connected to the Network, the actual interval will be
depended on delivery of such third party services.
(b) VBC may delete Receive Points from the Network with 30 business days'
prior written notice. Any penalty charges paid by Press Association as a result
of discontinuing third party services shall be reimbursed by VBC to Press
Association.
(c) Upon a need for additional codes for classification of VBC Information
for delivery to Receive Points, VBC will notify Press Association of the
proposed code. Press Association shall have five business days to add the
additional classification codes to the Network. Upon verification by Press
Association that the classification code is not used elsewhere in the Network,
the code may be used by VBC. VBC may make changes in the classification code to
existing Receive Points electronically or may request coding changes for
existing Receive Points by telefax or electronic mail.
(d) Any requests for inclusions or deletions of Receive Points shall be
made on a form substantially in the form of Exhibit C attached hereto.
2.3 Restricted Access and Security.
(a) Press Association agrees to take all reasonable steps to ensure that no
third party has access to or use of VBC Video Publicity Advisories provided to
the Network, to the extent it has access to or control thereof.
(b) VBC agrees to take all reasonable steps to protect the security of the
Network, to the extent that it has access to or control thereof.
3. EQUIPMENT MAINTENANCE
3.1 Maintenance.
(a) Press Association shall use its best efforts to maintain the Network,
on a 24-hour basis seven days per week. During the term of this Agreement, upon
request from authorized VBC
4
personnel, Press Association will inspect, adjust and correct any
malfunction of the Network.
(b) Upon awareness of a failure within the Network, VBC shall contact the
Operations Manager at 00 Xxxxxxxxxxx Xxxxx, 0xx Xxxxx Operations, Xxx Xxxx, Xxx
Xxxx 00000 (212) 621-1530.
3.2 Out-of-Scope Maintenance.
At the request of VBC, Press Association may perform other work not defined
in this Agreement provided that such other work is, in Press Association's
opinion, within Press Association's capability and will not present labor
jurisdiction problems, is not hazardous and does not entail violation of any
federal, state or local laws, ordinances or regulations. Such work will consist
of, but not be limited to, responding to service requested due to
operator-related or caused failures, aborted installations due to lack of
available power source, interconnecting cabling and VBC-requested equipment
relocations and reinstallations. Such out-of-scope maintenance shall be provided
at the rates set forth in Exhibit D attached hereto.
4. REGULAR CHARGES; ADJUSTMENTS; PAYMENT POLICIES
4.1 [THE CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION.] Payments; Monthly Charges and Fees.
(a) VBC hereby agrees to pay a [THE CONFIDENTIAL PORTION HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE COMMISSION.] monthly payment of [THE CONFIDENTIAL
PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.] per Receive
Point to Press Association for the delivery of VBC Information to at least [THE
CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.]
of up to [THE CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION.] word units per day for Satellite Publicity and Video Publicity
Advisories subject to Section 4.1(d) below (the "[THE CONFIDENTIAL PORTION HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.] Payment"); provided,
however, that if Press Association has fewer than [THE CONFIDENTIAL PORTION HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.] Receive Points in
operation, VBC's monthly charges, as hereinafter set forth, shall be calculated
on the basis of the number of Receive Points actually installed and capable of
operation. If the Regular Rate for use of the Network decreases, the [THE
CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.]
Payment shall decrease in proportion to such decrease. The [THE CONFIDENTIAL
PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.] Payment
shall be effective for the duration of this Agreement.
(b) VBC agrees to pay to Press Association a monthly charge equal to:
(i) the [THE CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.] Payment set forth in Section 4.1(a); and
(ii) [THE CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION.] of the Regular Rate (as hereinafter defined), per
Receive Point for transmissions in excess of the [THE CONFIDENTIAL PORTION
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.] word unit per
day limitation set forth in Section 4.1(a) above. As used herein, "Regular
Rate" shall mean the then current rate Press Association charges its
customers for their use of AP Express. Press Association reserves the right
to change the Regular Rate, unilaterally, in its sole discretion, at any
time. Neither party shall consult the other party concerning the Regular
Rate. Press Association shall give 10 days written notice of any change it
makes in the Regular Rate.
(c) In addition to the [THE CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.] Payment, VBC will pay Press Association [THE
CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.]
per month for each additional Receive Point over [THE CONFIDENTIAL PORTION HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.] and up to [THE
CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.]
VBC will make such payment for such Receive Points for a minimum of the later of
(i) [THE CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION.] from the date of installation of each such Receive Point or (ii)
the date of this Agreement and thereafter until such Receive Point is deleted
from the Network pursuant to Section 2.2 above.
(d) If VBC requests additional Receive Points in excess of [THE
CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.]
VBC's payment obligations hereunder will be as follows:
(i) VBC will pay Press Association [THE CONFIDENTIAL PORTION HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION.] per month for each
additional Receive Point in excess of [THE CONFIDENTIAL PORTION HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION.] a period of two years;
and
(ii) All other payment obligations will remain in full force and
effect.
(e) For purposes of this Section 4.1, VBC will only be permitted to use
additional Receive Points for delivery of Satellite Publicity Advisories and
Video Publicity Advisories to television newsrooms.
4.2 Payment Policies.
All monthly charges and fees payable to Press Association shall be billed
by Press Association monthly in arrears and shall be paid by VBC within [THE
CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.]
of the date of the invoice in accordance with Press Association's then current
payment policies. In addition, all amounts outstanding in excess of [THE
CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.]
days will accrue interest at a rate equal to the lesser of: (i) one and a half
percent per month or (ii) the highest rate permitted by applicable law.
4.3 Additions and Deletions of Receive Points.
Receive Points added or deleted from the Network pursuant to Section 2.2
shall be deemed made on the day such addition or deletion is made. Any and all
monthly charges and fees relating to such Receive Points shall be computed on
the basis of a month of 30 days and actual days elapsed for which the Receive
Point is in operation. Press Association shall use its best efforts to advise
VBC, by telefax or electronic mail, of new Receive Points as soon as possible
after installation.
4.4 Price Adjustment.
(a) Monthly fees and charges payable by VBC for use of the Network, other
than the [THE CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION.] Payment set forth in Section 4.1(a) hereof, shall be subject to
adjustment by Press Association during the term of this Agreement as follows:
(b) Beginning on January 1, 1993 and for the remaining term of the
Agreement, all fees (except telco charges) may be adjusted effective January 1
of each calendar year at a percentage rate equal to the greater of (x) Consumer
Price Index, Urban Wage Earners and Clerical Workers, New York City, All Items,
1967 = 100, inflation rate of the past calendar year, as published by the U.S.
government, or (y) the General Assessment increase approved by the Board of
Directors of The Associated Press. All such increases in fees will become
effective with the first month's billing after such increase.
4.5 Supplies.
Receive Points shall provide supplies, including, but not limited to,
teletype paper and ribbons required for receiving equipment.
5. NEWS ORGANIZATIONS, TRADE ASSOCIATIONS, NON-NEWS ORGANIZATIONS
The parties hereby agree that Press Association will reserve to itself the
right to distribute PA News-Related Data for News Organizations and Trade
Associations; provided, however, that VBC may serve News Organizations and Trade
Associations with the prior express written consent of Press Association. News
Organizations shall include, without limitation, CBS, ABC, NBC, Reuters, Conus,
CNN, ESPN, Westinghouse. Trade Associations shall include, without limitation,
NAB, RTNDA and RAB. Press Association shall determine, in its sole discretion,
whether a particular organization is a News Organization or Trade Association.
6. TERM AND TERMINATION OF AGREEMENT
6.1 Commencement.
Press Association shall use its best efforts to enable VBC to use the
Network, in accordance with Section 2, on the date hereof. No regular monthly or
periodic fees or charges to be incurred by VBC under this Agreement shall be
payable prior to actual commencement of services.
6.2 Basic Term.
The basic term of this Agreement shall be from the date hereof until
November 1, 1997. This Agreement shall automatically renew for consecutive
two-year periods unless either party gives written notice to the other party of
its desire to terminate the
7
Agreement and such notice is received at least six months prior to the
expiration of each period.
6.3 Material Breach by VBC
Should VBC breach any of its material obligations hereunder, Press
Association shall provide written notice thereof to VBC. VBC shall have the
right to cure its default during a 30-day period following receipt of the
notice. If no cure is made during such cure period, then Press Association may
cancel this Agreement without penalty on five days' additional written notice.
Upon a termination pursuant to this Section 6.3, VBC shall pay to Press
Association, as liquidated damages and not as a penalty, an amount equal to 100%
of the Guaranteed Minimum Payment for the remaining term of this Agreement.
6.4 Material Breach by Press Association.
(a) Should Press Association breach any of its material obligations
hereunder, VBC shall provide written notice thereof to Press Association. Press
Association shall have the right to cure its default during a 30-day period
following receipt of the notice. If no cure is made during such cure period,
then VBC shall have the right to cancel this Agreement on five days' additional
written notice. Upon a termination pursuant to this Section, VBC shall have no
further obligations hereunder to Press Association except for the payment of
amounts previously due and owing.
(b) In addition to the right to terminate set forth in Section 6.4 (a)
above, VBC or any affiliate of VBC under this Agreement shall have the right to
indemnification from Press Association for the difference, if any, between the
cost of the Network as provided by Press Association, and the cost of a
substitute network arrangement of the same or substantially similar capability,
procured in good faith and without unreasonable delay at reasonable cost, for
the remaining term of this Agreement provided, however, that in lieu of
indemnifying VBC under this Section 6.4(b), Press Association shall have the
option to provide VBC with an alternative network arrangement with at least
equal capability to the substituted network described above at the same cost to
VBC.
(c) Such right to terminate and receive indemnification from Press
Association pursuant to Sections 6.4(a) and (b) and Section 7.1 hereof shall be
the sole and exclusive remedy available to VBC relating to Press Association's
breach of this Agreement.
(d) Notwithstanding any rights granted to VBC pursuant to this Section,
Press Association shall not in any way be liable to VBC or any affiliate of VBC
for any indirect, consequential, special, exemplary or incidental damages in
contract, tort or otherwise to VBC or any affiliate of VBC arising from or
relating to this Agreement.
8
7. INDEPENDENT SUBSCRIBER AGREEMENTS
VBC and PA acknowledge and agree that (i) they shall each have the right to
independently contract with their respective subscribers regarding the service
or services it provides, without notice to, or interference by, the other party
and (ii) the terms and conditions of such agreements are not subject to the
approval of the other party.
8. INDEMNIFICATION
8.1 Indemnification of VBC.
If Press Association's work under this Agreement involves operations by
Press Association on the premises of any Receive Point, Press Association shall
take all necessary precautions to prevent the occurrence of any injury to person
or property (including the goods and services provided hereunder) during the
progress of such work. To the extent that any such injury or damages are due
directly to Press Association's willful or grossly negligent acts, Press
Association shall defend, indemnify and save VBC and its officers, directors,
employees, agents, affiliates, affiliated companies and assigns harmless from,
and shall defend such parties against any liability claim, loss, damage, or
expense by reason of injuries to persons (including reasonable attorneys' fees)
for physical injury to persons, death or damage to property directly arising out
of the use of said premises by Press Association or the activities of Press
Association, its agents, representatives, contractors or employees.
8.2 Indemnification of Press Association.
(a) VBC hereby agrees to indemnify and hold Press Association and its
officers, directors, employees, agents, affiliates, affiliated companies and
assigns harmless from, and shall defend such parties against, any and all
liability, loss, claim, damage or expense (including reasonable attorneys' fees)
for injury to person, death or damage to property arising out of or resulting
from the willful or grossly negligent acts of VBC.
(b) VBC hereby further agrees to indemnify and hold Press Association and
its officers, directors, employees, agents affiliates, affiliated companies and
assigns harmless from, and shall defend such parties against, any and all
liability, loss, claim or damage (including reasonable attorneys' fees) due to
the placement of the VBC logo on any Receiver.
9. REPRESENTATIONS AND WARRANTIES OF PRESS ASSOCIATION
Press Association represents and warrants as follows:
9.l Press Association is a corporation duly incorporated, validly existing
and in good standing under the laws
9
of the jurisdiction of its incorporation and is qualified to do business in all
other jurisdictions where the failure so to qualify might materially affect its
business or assets.
9.2 The execution, delivery and performance by Press Association of this
Agreement are within Press Association's corporate powers, have been duly
authorized by all necessary corporate action, require no governmental approval,
and do not contravene law or any contractual restriction binding on Press
Association.
9.3 This Agreement will be, when delivered, the legal, valid and binding
obligation of Press Association enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium, or similar laws of general applicability relating to or affecting
creditor's rights.
9.4 There are no pending or, to the best knowledge of Press Association,
threatened actions or proceedings affecting Press Association before any court
or governmental agency, which may materially adversely affect the financial
condition or operations of Press Association.
10. REPRESENTATIONS AND WARRANTIES OF VBC
VBC represents and warrants to Press Association as follows:
10.1 VBC is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and is
qualified to do business in all other jurisdictions where the failure so to
qualify might materially affect its business or assets.
10.2 The execution, delivery and performance by VBC of this Agreement are
within VBC's corporate powers, have been duly authorized by all necessary
corporate action, require no governmental approval, and do not contravene law or
any contractual restriction binding on VBC.
10.3 This Agreement will be, when delivered, the legal, valid and binding
obligation of VBC enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium or similar
laws of general applicability relating to or affecting creditor's rights.
10.4 There are no pending or, to the best knowledge of VBC, threatened
actions or proceedings affecting VBC before any court or governmental agency,
which may materially adversely affect the financial condition or operations of
VBC.
10
11. LIMITS ON LIABILITY
11.1 Press Association shall not be liable to VBC for loss, damage or
claims resulting from (1) inadvertent publication of VBC Information entering
the Network, (2) interruption of transmission of VBC Information by the Network
caused by mechanical or electrical breakdown, (3) interruption in common carrier
service, or (4) other causes beyond the reasonable control of Press Association.
Unless such interruptions affect more than 50% of the Receive Points
simultaneously and are continuous for more than seven consecutive days, the
monthly fees payable by VBC shall not be reduced by such interruptions.
11.2 Without limitation, neither party shall be liable for delays in
delivery or performance hereunder if such delays are caused by fire, flood,
commercial power failure or reduction of commercial power supplied, earthquake,
tornado, acts of God or of public enemies, failure of telecommunication links
(not being attributable to the willful act or negligence of the concerned party
or any person or entity affiliate with it), strike, lockout, industrial dispute
or job action, or by reason or any other cause beyond their control and fault.
Should such an event be imminent or occur, the affected party will notify the
other immediately, by telephone (and then in writing) and identify any event
which caused or will cause, the event resulting in a failure or delay on its
part. Such notice shall also state, to the extent possible, the anticipated
effect of the event on that party's ability to perform.
12. PERFORMANCE SUBJECT TO LAWS
This Agreement shall be subject to local, state, and federal laws and
regulations, including regulations of the Federal Communications Commission, as
they shall be supplemented and amended from time to time. Neither party shall be
liable for failure to perform its obligations under this Agreement to the extent
such performance shall be prevented by such laws and regulations.
13. RELATION OF PARTIES
Subject to Section 1.1(d) above, neither party is under any obligation to
deal exclusively with the other regarding use of communication facilities.
Neither party will involve itself in any way in the sale or promotion of the
services provided by the other party, except as agreed upon between the parties
in writing. The parties to this Agreement are not partners or joint venturers.
Press Association is not acting as a common carrier but is sharing the use of
the Network with VBC.
11
14. RIGHT OF FIRST REFUSAL
If Press Association at any time decides to cease transmitting Satellite
Publicity Advisories, Video Publicity Advisories or Program Advisories, it shall
enter into good faith negotiations with VBC to permit VBC to assume the
operation of the Network with regard to such Satellite Publicity Advisories,
Video Publicity Advisories and Program Advisories. Such assumption shall be
entirely dependent upon VBC and Press Association entering into an agreement in
form and substance satisfactory to both parties.
15. ASSIGNMENTS
Neither party shall assign its rights or obligations under this Agreement
without the prior express written consent of the other, which consent will not
be unreasonably withheld; any attempted assignment without such written consent
shall be void, except that either party may assign its rights or obligations
under this Agreement to an affiliate with prior written notification to the
other party. For purposes of this Agreement, "affiliate" shall mean any entity
that controls, is controlled by, or is under common control with either party.
For purposes of this definition, "control" shall mean direct or indirect
beneficial ownership of at least 50% of equity.
16. NON-SOLICITATION
Neither Press Association nor VBC shall offer or make any form of
solicitation of employment to any person in the employ of the other party, or
any affiliate or parent of the other party either (i) during the term of this
agreement and (ii) for a period of two years after the termination of this
Agreement, without the prior express written consent of the other party.
17. ADVERTISING AND PUBLICITY
All advertising and publicity by Press Association and VBC, where the other
party in this Agreement is mentioned by name, must be submitted and approved by
the other party prior to release for publication and the other party shall not
unreasonably withhold such approval. VBC may not use any Associated Press logo
in any manner without the prior written permission of Press Association and/or
The Associated Press.
18. MISCELLANEOUS
18.1 No Waiver.
12
The failure of either party at any time to require performance by the other
party of any provision of this Agreement shall in no way affect the right of
either party thereafter to enforce the same provision, nor shall the waiver of
either party of any breach of any provision herein be held or taken to be a
waiver of any succeeding breach or as a waiver of the provision itself.
18.2 Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to its choice of law rules.
18.3 Notices.
All notices, statements and payments required or permitted under this
Agreement shall be deemed properly make upon receipt at the following addresses
or at such other place as the parties may from time to time direct in writing:
If to Press Association:
Press Association, Inc.
00 Xxxxxxxxxxx Xxxxx - 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxx
Vice-President and Director of
Broadcast Services
With a copy of all notices and
material communications to:
Xxxx X. Xxxxx, Xx., Esq.
Xxxxxx and Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to VBC:
VBC
c/o Video Broadcasting Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxxxxxxx
President
With a copy of all notices and
material communication to:
Xxxxxxxx Xx. Xxxxxxx, Esq.
Tashlik, Xxxxxxxx and Xxxxxxx, P.C.
000 Xxxxxxxx Xxxx.
Xxxxx Xxxx, Xxx Xxxx 00000
13
18.4 Confidentiality.
The parties hereto agree that all documents and confidential information
furnished to a party hereunder (including the terms of this Agreement) shall be
held in strict confidence and shall not, without the prior written consent of
the other party, be made available or disclosed to any third party or be used by
the other party hereto other than as contemplated hereunder. Moreover, each
party hereto agrees to restrict dissemination of such documents and confidential
information to only those persons in their respective organizations who are
directly involved in the performance of the obligations under this Agreement.
Notwithstanding the above restriction, neither party shall have any obligation
for any disclosure of information which is, or becomes generally known to the
public without breach of the terms of this Agreement, or for any disclosure of
information which is required by court order or by order of any governmental or
administrative tribunal having jurisdiction over the parties hereto.
18.5 Entire Agreement.
This Agreement constitutes the entire agreement of the parties hereto and
no amendment or modification shall be binding unless reduced to writing and
signed by the parties.
18.6 Descriptive Headings.
The descriptive headings of the several sections and subsections of this
Agreement are used for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
18.7 Submission to Jurisdiction.
The parties hereto agree that the state courts and federal courts in the
State of New York shall be proper forums for any legal controversy arising in
connection with this Agreement, and the parties hereto hereby irrevocably and
unconditionally consent to the non-exclusive jurisdiction of such courts for
such purposes. The parties hereto further irrevocably consent to the service of
process in connection with any such controversy by the mailing thereof by
registered or certified mail, postage prepaid, to the parties hereto, at the
respective addresses set forth in, or designated pursuant to, this Agreement.
18.8 Shipment of Printers; Installations.
All printers packed and shipped by AP hereunder will include an appropriate
"AP Express/Medialink" badge. Press Association will use its best efforts to
complete installations of such printers within 30 business days of the date of
VBC's written request for such installations.
14
18.9 Counterparts.
This Agreement may be executed in several counterparts and by the different
parties hereto on separate counterparts, each of which shall be deemed to be an
original and all of which, when taken together, shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date set forth above.
VIDEO BROADCASTING CORPORATION PRESS ASSOCIATION, INC.
By: /s/ Xxxxxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxxxx III
-------------------------- ---------------------------
Name: Xxxxxxxx Xxxxxxxxx Name: Xxxxx Xxxxxxxx
Title: President Title: Vice President and
Director of Broadcast
Services
15
EXHIBIT A
DESCRIPTION OF NETWORK
1. Press Association shall provide Customer with access to at least a
1200-baud national data delivery network that employs addressable end-user
equipment ("Receivers") to a minimum of the 00 xxxxxxxxxx xxxxxx, Xxxxxx,
Xxxxxx and Puerto Rico.
2. For Customer Subscribers which are not FCC-licensed television stations or
cable television systems and for Customer Subscribers located outside the
geographic area described above, the Network can be made available to the
Customer for delivery to Customer Subscribers via facsimile or equivalent,
at Press Association's discretion. Customer Information relayed via
facsimile shall be deemed to have been transmitted on a "routine" priority,
and the cost shall be at the Regular Rate, as adjusted from time to time,
plus toll charges. The delivery time set for transmission priority of
Customer Information shall not apply to Customer Information relayed to
Customer Subscriber(s) via facsimile.
EXHIBIT B
FORM OF LOGO
A copy of the form of logo to be used by VBC on the Receivers is annexed
hereto.
[FORM OF LOGO]
AP EXPRESS PROGRAMLINK
AP EXPRESS PROGRAMLINK
AP EXPRESS MEDIALINK
AP EXPRESS MEDIALINK
EXHIBIT C
REQUEST FORM
[Date]
CUSTOMER/NETWORK NAME:__________________________________________________________
DATE:__________________________ REQUESTED BY:__________________________________
________________________________________________________________________________
ACTION TO BE TAKEN
________Add user to network ________Outside move of circuit
________Disconnect ________Make equipment change
________Inside move of circuit ________Amend previous order
________Change coding ________Change information in
________Cancel previous order records
METHOD OF DELIVERY: Printer_________ Computer________
DESIRED EFFECTIVE DATE: ______________________________________
________________________________________________________________________________
LOCATION INFORMATION
Receive Point: _______________________________________________________________
Street Address: _______________________________________________________________
Building Name: _______________________________________________________________
Room/Floor: _______________________________________________________________
City/State/Zip: _______________________________________________________________
Contact & Title: _______________________________________________________________
Telephone: _______________________________________________________________
REMARKS/SPECIAL INSTRUCTIONS
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
EXHIBIT D
OUT-OF-SCOPE SERVICE RATES
1. Prevailing Out-of-Scope Service:
Regular hours: 9:00 am to 5:00 pm
$72.00/hour per man
Monday thru Friday
excluding holidays
MINIMUM CHARGE IS 2 HOURS
Overtime hours: 5:00 pm to 9:00 am
$108.00/hour per man
Monday thru Friday
and all day Saturdays and
Sundays, excluding holidays
MINIMUM CHARGE IS 2 HOURS
Holiday hours: All holidays recognized
$144.00/hour per man
by Company
MINIMUM CHARGE IS 5 HOURS
2. Prices shall be calculated to the nearest tenth of one hour.
3. Vehicle mileage will be charged to $0.50 per mile. Other travel expenses
such as parking, tolls, lodging, meals, etc., will be charged to actual
cost (overnight lodging and meals not applicable to less than four working
hours).
4. Prices are subject to change with 90-day prior notification. All rates will
be identical to those charged to other Press Association customers under
similar types of contracts.
5. Press Association recognized holidays are as follows:
1. New Year's Day
2. Washington's Birthday
3. Memorial Day
4. Independence Day
5. Labor Day
6. Thanksgiving Day
7. Christmas Day
