Exhibit 10.7
CONFIDENTIAL TREATMENT
*****[Deleted pursuant to a request for Confidential Treatment and filed
separately with the Securities and Exchange Commission]
PAY-PER-VIEW
ADDRESSABLE CABLE TELEVISION
LICENSE AGREEMENT
Agreement Date:
January 20, 1999
Between:
TITAN SPORTS, INC. ("Distributor")
0000 XXXX XXXX XXXXXX
XXXXXXXX, XXXXXXXXXXX 00000
And:
VIEWER'S CHOICE L.L.C. ("Service")
000 XXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
CONFIDENTIAL TREATMENT
*****[Deleted pursuant to a request for Confidential Treatment and filed
separately with the Securities and Exchange Commission]
PAY-PER-VIEW
ADDRESSABLE CABLE TELEVISION
LICENSE AGREEMENT
LICENSE AGREEMENT entered into this 20th day of January, 1999, by and between
Titan Sports, Inc., a Delaware corporation with offices at 0000 Xxxx Xxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 ("Distributor") and Viewer's Choice L.L.C.,
successor in interest to Pay-Per-View Network, Inc., d/b/a Viewer's Choice; a
limited liability company with offices at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "Service").
PREMISES
WHEREAS, the Distributor owns all rights to certain live professional wrestling
exhibitions currently known as "WWF Royal Rumble", "WWF WrestleMania", "WWF
SummerSlam", "WWF King of the Ring", "WWF Survivor Series" and the "WWF In Your
House Series" (collectively the "Live Event"), including the right to
communicate a video version of the Live Event in its entirety in the form of a
video program, such Live Event, any delay feed and any encore presentations,
collectively referred to as the "Video Programs", throughout the United States,
including its territories, commonwealths, trusteeships and possessions (the
"Territory"); and
WHEREAS, the Service is affiliated with numerous cable television operators,
multiple point microwave distribution systems ("MDS"), Satellite Master Antennae
Television Systems ("SMATV"), Video Dial Tone/OVS, VOD, Telco and PrimeStar, a
company distributing the signal via KU Band, and C band satellite service, (the
"Affiliates") which own or possess rights of access to one or more addressable
cable television systems, MMDS systems, SMATV systems, Video Dial Tone/OVS, VOD,
Telco systems consisting of facilities, equipment and/or cable transmission
paths capable of exhibiting the Video Programs to their addressable subscribers;
and
WHEREAS, the Distributor and the Service desire to enter into a licensing
agreement so that Distributor may communicate the Video Programs to the Service
for transmission to its Affiliates for exhibition to their addressable and/or
trap subscribers, who agree to pay a fee (the "Pay-Per-View Charge") for being
able to watch the Video Programs ("Pay Per-View Subscribers");
NOW THEREFORE, the Distributor and the Service agree as follows:
CONFIDENTIAL TREATMENT
*****[Deleted pursuant to a request for Confidential Treatment and filed
separately with the Securities and Exchange Commission]
1.0 LICENSE:
1.1 License: The Distributor hereby licenses the Service on a limited
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nonexclusive basis to transmit to the Service's Affiliates which includes
Viewer's Choice Only Affiliates, Dual Affiliates and Event Only Affiliates
hereinafter defined in Section 9.3, subject to all the terms and conditions set
forth herein, the Video Programs to the Affiliates (the "License"). Such
transmissions shall be made, in each instance, at the times for the live
presentation for each Video Program designated by the mutual agreement of the
parties set forth in Section 7.8.
1.2 The License applies only to the Video Programs which Video
Programs may promote, market and advertise any of the Distributor's Live Events,
participants, other programs, merchandise or other properties, provided that the
Distributor's Live Events are wrestling related and that they cross promote the
Video Programs.
1.3 Distributor shall retain exclusive control of the Video Programs.
Neither Service nor its Affiliates use the name and/or likenesses of any of the
Distributor's character(s), person(s) or entity or of the Distributor's
trademarks, servicemarks or logos of any person(s) or entity appearing in the
applicable Video Program except for advertising purposes as Distributor directs.
1.4 This License is limited to the Service's transmission of the
Video Programs solely to its Affiliates as listed in Addendum Number 1 and is
non-exclusive with respect to such Affiliates, defined as:
(A) The Service's shareholders' owned and operated cable systems;
(B) The Service's independent cable systems currently under contract
to carry the Service's VC Distribution Pay-Per-View ("PPV") Channel(s); and
(C) The Service's SMATV systems as listed on Addendum Number 2.
Addenda Number 1 and 2 are to be submitted for each Video Program.
(D) Live Event only Affiliates.
(E) Titan will not solicit the Service's Affiliates.
1.5 This License does not extend to and does not permit the service
to transmit the Video Programs to anyone else whomsoever and does not extend to
and does not permit the Affiliates to cablecast or exhibit the Video Programs
outside or beyond their respective cable television communities, consisting of
their own addressable and/or trap subscribers except as to PrimeStar which shall
be the entire Territory.
1.6 This License is further limited to the Affiliates' exhibition of
the Video Programs to Pay-Per-View Subscribers in their private dwelling units
so they may watch the Video Programs on their television sets. This License
does not extend to and does not permit the Affiliates to cablecast or exhibit
the Video Programs to any non-residential subscribers or subscriber locations
outside of residential units, except for private rooms, in hotels, motels,
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CONFIDENTIAL TREATMENT
*****[Deleted pursuant to a request for Confidential Treatment and filed
separately with the Securities and Exchange Commission]
dormitories, fraternities and sororities, unless specifically identified and
mutually agreed upon, including, without limitation, the following:
(A) Any subscribers or subscriber locations open to the public at
large;
(B) Any subscribers operating commercial establishments, such as
restaurants, bars or other facilities for public entertainment and amusement;
and
(C) Any subscribers charging an admission fee for watching the Video
Programs.
1.7 This License does not extend to and does not permit the Service
to duplicate, copy, record or transcribe the Video Programs by any means
whatsoever for its own use. However, the Service shall make two (2) copies of
the satellite feed in order to have available a recording of the Video Programs
for use in transmitting the replay(s), encore presentation(s) and Authorized
Replays. Once the replay(s), encore presentation(s) and Authorized Replays of
the Video Programs are completed, the copy(ies) shall be completely erased or
otherwise destroyed.
1.8 This License strictly prohibits any and all knowing acts of
commission or omission on the part of the Service which would permit or
facilitate the cablecasting and exhibition of the Video Programs to anyone,
other than its Affiliates' Pay-Per-View Subscribers; and neither the Service nor
its Affiliates shall, for any reason whatsoever, open the television signal
carrying the Video Programs to all their subscribers, unless all have agreed to
pay the fee for watching the applicable Video Programs on their television sets
except for the Countdown Show which may be shown in the clear.
1.9 This License does not convey, sell, lease or assign to the Service
any rights and/or interests, whatsoever, in or to the Video Programs.
Furthermore, all media or methods of exhibition or exploitation of the Video
Programs not expressly licensed to the Service, pursuant to this License
Agreement, are entirely reserved to the Distributor who, except for the
restrictions set forth in Section 16, may fully exhibit and exploit the Video
Programs at any time without limitation and without regard to the extent to
which such exhibition and exploitation compete with this License to the Service.
1.10 Distributor shall make available to Service all programs Distributor
makes available to any other Pay-Per-View network or service.
1.11 Service shall retransmit the Video Programs to its Affiliates
during each year of the term (hereinafter defined) via the most widely viewed
Viewer's Choice channel(s) ("VC Distribution Pay-Per-View Channels") offering
Pay-Per-View events for exhibition to the Affiliates' Pay-Per-View Subscribers
who pay a Pay-Per-View Charge to view the Video Programs. In addition to the
above, Service may also retransmit the Video Programs on other VC Distribution
Pay-Per-View Channels.
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CONFIDENTIAL TREATMENT
*****[Deleted pursuant to a request for Confidential Treatment and filed
separately with the Securities and Exchange Commission]
2.0 PROGRAMS: The License shall only apply to the Video Programs, specified
herein, and does not apply to any of the Distributor's other non-pay-per-view
video programs.
2.1 The Video Programs, consistent with Section 1.2 may promote, market
or advertise the World Wrestling Federation, professional wrestlers,
professional wrestling events, the Distributor's other video programs, if any,
and/or the Distributor's own duly authorized merchandise, not to exceed three
(3) minutes in the aggregate per Video Program. However, the Video Programs
shall not promote, market or advertise any other commercial services or products
except for Distributor's sponsorships. The merchandise will be appropriately
related to the Live Event and consistent with a TV rating substantially similar
to the TV rating of the Distributor's other syndicated and cable broadcast
programs.
2.2 The Distributor shall be responsible for all costs and expenses
arising in connection with communication of the Video Programs to the Service
including, without limitation, the generation and transmission of both the
satellite feed and the replay satellite feed.
3.0 TERM: The Term of License shall commence on January 22, 1997 and extend
until the later of (a) January 31, 2004; and/or (b) Distributor's receipt of the
last final accounting statement and payment due from Service for the last Video
Program delivered (March 31, 2005), unless otherwise terminated as provided
herein, or at any time during the Term as a consequence of a breach by the
Service and the Service's failure to cure as provided in Section 23.3 herein of
the material terms and conditions of the License.
3.1 If the Service or any of its Affiliates fail to complete the
transmission, cablecasting and/or exhibition of any of the Video Programs, such
failure shall not operate to extend the Term of this License Agreement.
3.2 All provisions of this License Agreement which expressly or by
necessary implications survive the expiration or earlier termination of the Term
shall do so, including, but not limited to, any representations, warranties and
indemnities.
3.3 Automatic Extension: At the expiration of the Term and in the event
that the parties have not executed a new agreement and the parties are
continuing to exhibit the Distributor's Video Programs, this Agreement shall be
extended on an event by event basis, cancelable by either party upon thirty (30)
days written notice.
3.4 Program Content: The Video Programs shall contain substantially
the same content and TV rating as the Distributor's other syndicated and cable
broadcast programs.
4.0 TERRITORY: This License Agreement shall only apply to the geographic area
served by the Service's Affiliates and encompassing each Affiliate's usual and
customary addressable and/or trap subscribers in the Territory defined in the
Premises.
5.0 C BAND AUTHORIZED REPLAYS: Service has the right to exhibit any number of
replays of each Video Program for the C Band TVRO market, as listed in Schedule
C, through
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CONFIDENTIAL TREATMENT
*****[Deleted pursuant to a request for Confidential Treatment and filed
separately with the Securities and Exchange Commission]
midnight Friday following the original presentation(such replays, the "C Band
Authorized Replays"). For the avoidance of doubt and notwithstanding anything
above, Service shall not have the right to exhibit the original presentation and
its replay on the day of the Live Events to the C Band TVRO market.
6.0 PROGRAM DELIVERY AND TRANSMISSION: Service shall provide its satellite and
distribution facilities to allow Distributor to deliver the Video Programs via
the Service's Satellite to all Service's Affiliates as well as to the
Distributor Affiliate base licensed directly by Distributor, but not to
affiliates of any other Pay-Per-View network or service licensed by Distributor.
The Service and/or the Affiliates shall encode, address and decode the signal,
thus making available the Video Programs to all applicable Pay Per-View
Subscribers (except DBS subscribers of PrimeTime 24 or any other DBS service
licensed by Distributor which might interrupt the Service's service at any
time), including the Service's Affiliate base as well as the Distributor
Affiliate base. The satellite time provided by Service to Distributor shall
include that amount of testing time jointly deemed necessary by Distributor and
Service for transmission of the Video Programs. Manual controls will be jointly
developed by Distributor and the Service to ensure that only authorized
Service/Distributor Affiliates receive the Video Programs. Distributor shall
deliver an encrypted broadcast quality signal of the Video Programs to a
satellite which shall retransmit the signal to Service's downlink facility.
Delivery of the signal of each Video Program shall be deemed complete upon the
Service's receipt at the Service's downlink facility. Service requires a
primary signal and a backup signal of each Video Program. Attached as Exhibit 1
is a description of Service's technical specifications. Distributor's Affiliate
base, for no additional compensation, may access Service's signal from Service's
satellites if it has compatible decoders which presently are *****.
6.1 The Distributor shall immediately be excused from delivery of any
of the Video Programs to the Service upon the occurrence of any of the
following:
(A) A governmental or quasi-governmental agency by order or ruling
requires the cancellation or postponement of the Live Event.
(B) A licensed physician certifies that any of the participants for
the Live Event are mentally or physically disabled so that they cannot
participate in the Live Event.
(C) The participants for the Live Event fail or refuse to participate
in the Live Event, or are disqualified from participating in the Live Event for
reasons beyond the Distributor's reasonable control;
(D) The Distributor, in its sole discretion, determines that the
transmission, cablecast and/or exhibition of any of the Video Programs would
infringe upon the rights of others and subject the Distributor to a material
liability;
(E) The Distributor, in its sole discretion, determines that the
transmission, cablecast and/or exhibition of any of the Video Programs would
otherwise subject the Distributor to any material liability.
-5-
CONFIDENTIAL TREATMENT
*****[Deleted pursuant to a request for Confidential Treatment and filed
separately with the Securities and Exchange Commission]
(F) The Live Event is delayed or prevented from occurring on the
scheduled date or at the scheduled time for any reason beyond the Distributors
reasonable control;
(G) The generation and transmission of the television signal carrying
any of the Video Programs is delayed or prevented from occurring on the
scheduled date or at the scheduled time for any reason (including without
limitation: weather conditions) beyond the Distributor's reasonable control;
and/or
(H) The domestic telecommunications satellite fails to operate,
receive and/or retransmit the television signal to the Service's downlink
facility for any reason (including without limitation: weather conditions).
7.0 PROGRAM TRANSMISSION AND EXHIBITION: The Service shall receive the
television signal for the Video Programs at its downlink facility; re-encode the
television signal; and then uplink the television signal to the Service's
domestic telecommunications satellite for transmission to its Affiliates, who
shall downlink and cablecast the Video Programs for exhibition to their Pay-Per-
View Subscribers.
7.1 The Service and the Affiliates shall transmit, cablecast and/or
exhibit the Video Programs in their entirety, including all titles, credits and
copyright notices on the Video Programs.
7.2 The Service and the Affiliates shall not cut, edit, change, add to,
delete from or revise the Video Programs in any way whatsoever. In the event
that the Service determines that some part(s) of the Video Programs and/or
Distributor's publicity and advertising may be offensive to the Affiliates'
subscribers, the Service shall immediately contact the Distributor to develop a
mutually agreeable solution.
7.3 The Service and the Affiliates shall not interrupt the Video
Programs for any commercial breaks, news bulletins or public announcements,
unless the Distributor approves such interruptions in writing or is due to a law
or other governmental or court order.
7.4 The Service and the Affiliates shall not delay, defer or reschedule
the transmission, cablecasting and/or exhibit of any Video Program, and shall
not retransmit, recablecast and/or exhibit any Video Program at any time other
than as contemplated under Section 1 or as provided in Section 7.8. If the
Service or the Affiliates experience or encounter technical difficulties
beyond their reasonable control in the transmission, cablecasting or exhibition
of a Video Program, and if the Service or the Affiliates want to reschedule the
transmission, cablecasting and exhibition of such Video Programs, then the
Service must give the Distributor written notice of the technical difficulties
------
within five (5) business days and request an extension of the License to permit
the transmission, cablecasting and exhibition of such Video Program at an
alternate time. All such extensions are at the Distributor's sole discretion
and require the Distributor's written approval. In addition, the Service shall
consult, if reasonably and commercially possible, with the Distributor on
compensating offers provided to either the Affiliates or the Pay-Per-View
Subscribers provided, however, the Affiliates must use
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CONFIDENTIAL TREATMENT
*****[Deleted pursuant to a request for Confidential Treatment and filed
separately with the Securities and Exchange Commission]
commercially reasonable efforts to issue credits to the Pay-Per-View Subscribers
and to not void or delete the PPV buys due to any technical difficulties.
7.5 The Service and the Affiliates shall honor all copyrights with
respect to all Video Programs.
7.6 Omitted.
7.7 The Service may distribute the Video Programs in both analog and
digital formats on multiple channels.
7.8 Original/Replay/Encore Presentations: In order to maximize sales
------------------------------------
of the Video Programs, the Service shall distribute all Original and Replay
Presentations on one of the most widely viewed Service's channels which carries
events and Encore Presentations on the Tuesday following the Original
Presentation on the channel of the Service's choice, as follows:
Original Events/ln Your House Live Events:
1. Original presentation on the day of the Live Event.
2. One (1) Replay on the day of the Live Event.
3. One (1) Encore Presentation.
7.9 Authorized Replays: Service has the right, in addition to Section
------------------
7.8, to exhibit any number of replays of each Video Program through midnight
Friday following the initial exhibition of such Video Program (such replays, the
"Authorized Replays") on the channel of the Service's choice. Service shall
notify Distributor of the Service's Schedule of Replays thirty (30) days prior
to the Authorized Replays.
7.10 Alternative Program: If an alternative program is produced by the
-------------------
Distributor in lieu of one of the current titles as set forth in this
Agreement's Premises, of comparable quality, substance and duration to any of
the Video Programs ("Alternative Program") during the Term, such Alternative
Program shall be deemed automatically substituted in lieu of such current title
as set forth in this Agreement's Premises.
8.0 SECURITY AND TECHNICAL ADJUSTMENTS: Service shall distribute the Video
Programs using commercially reasonable encryption systems.
9.0 LICENSE FEES: The License Fee between the Distributor, the Service and the
Affiliates is a revenue sharing agreement.
9.1 The License Fee, payable to the Distributor, shall be calculated by
multiplying the Distributor's Revenue Percentage as defined in Section 9.3 (D),
or (E) times the Gross Revenues.
9.2 The term "Gross Revenues" for the Video Program shall mean the
Affiliate's aggregate number of Pay-Per-View Subscribers multiplied by the
suggested retail price for the Video Program or the Affiliate's actual retail
price for the Video Program, as charged to its Pay-Per-View Subscribers,
whichever is greater.
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CONFIDENTIAL TREATMENT
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separately with the Securities and Exchange Commission]
9.3 The Service's Affiliates shall be categorized into three categories:
(i) "Viewer's Choice Only Affiliates"; (ii) "Dual Affiliates"; and (iii) "Event
Only Affiliates" (collectively the "Affiliates") and the Service Revenue
Percentage shall only apply to the buys on the Service's channel of such
Affiliates. Unless otherwise specifically provided, the obligations and
responsibilities set forth in this License Agreement shall apply to the
Affiliates and shall also be deemed to apply to the hereinafter described
categories of Affiliates.
(A) Viewer's Choice Only Affiliates shall mean an Affiliate that only
-------------------------------
provides the Distributor's Video Programs to its Pay-Per-View Subscribers
through the Viewer's Choice Distribution Pay-Per-View Channels.
(B) Dual Affiliates shall mean an Affiliate that provides or offers
---------------
the Distributor's Video Programs to its Pay-Per-View Subscribers through the
Request Distribution Pay-Per-View Channels or its successor and through the
Service's channels.
(C) Event Only Affiliates shall mean Affiliates that have elected to
--------------------
carry Live Event(s) from Service on an ad-hoc basis.
(D) The Original Video Programs shall be defined as "WWF Royal
Rumble", "WWF WrestleMania", "WWF SummerSlam", "WWF King of the Ring" and the
"WWF Survivor Series". For the period February 1, 1997 through August 31, 1998
for the five (5) Original Video Programs the Service Revenue Percentage is
*****; the Distributor's Revenue Percentage is *****; and the Affiliate's
Revenue Percentage is ***** of the Gross Revenues.
(E) For the "WWF In Your House Series" during the period February 1,
1997 through August 31, 1998, the Service Revenue Percentage is *****; the
Distributor's Revenue Percentage is *****; and the Affiliate's Revenue
Percentage is ***** of the Gross Revenues.
(F) For the balance of the Term of this Agreement, the splits shall be
as follows:
Service's Affiliate's
Distributor's Revenue Revenue
--------------------------------------------------------------------------------------------------
Time Period Revenue Percentage Percentage Percentage
--------------------------------------------------------------------------------------------------
September 1, 1998
through January 31, 1999 ***** ***** *****
February 1, 1999 through January 31, ***** ***** *****
2000
February 1, 2000 through January 31, ***** ***** *****
2001
February 1, 2001 through January 31, ***** ***** *****
2002
February 1, 2002 through January 31, ***** ***** *****
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separately with the Securities and Exchange Commission]
2003
February 1, 2003 through January 31, ***** ***** *****
2004
9.4 The Service and/or the Affiliates shall not charge any unique or
unusual fee for the Video Programs, in addition to the actual retail price of
the Video Programs, which is not regularly charged with respect to other similar
events offered to Pay-PerView Subscribers. Fees which are understood by the
parties hereto not to be prohibited by this Section 9.4 include, without
limitation, late fees, trap fee, electronic order-taking fees, remote control
fees, decoder fees and club fees.
10.0 MOST FAVORED NATIONS:
(A) Affiliate Most Favored Nations: Notwithstanding anything in
------------------------------
Section 9, if the Distributor offers a Video Program in the Territory with an
Affiliate Revenue Percentage higher than ***** of the Gross Revenues to any
affiliate of Distributor, a DBS provider, or an affiliate of Reiss Media
Entertainment Corporation, HITS or their successors (collectively referred to
hereinafter as "Providers"), Distributor agrees that the Service Revenue
Percentage for Viewer's Choice shall be no less favorable than the Service
Revenue Percentage paid to such Providers; and the Service may offer the same
Video Program to the Service's Affiliates for the same Affiliate Revenue
Percentage set forth above. In no event, however, may Distributor or any of its
licensed Pay-Per-View distributors or services, including but not limited to
Providers, offer a Video Program in the Territory for a minimum Pay-Per-View
Subscriber license fee of less than the minimum Pay-Per-View Subscriber license
fee required of Service's Affiliates hereunder.
(B) Service Most Favored Nations: Distributor agrees that the Service
----------------------------
Revenue Percentage for Viewer's Choice shall be no less favorable than the
Service Revenue Percentage paid to Reiss Media Entertainment Corporation, HITS
or their successor entities or any other national pay-per-view distributor.
DIRECTV, EchoStar, AlphaStar or PrimeTime 24 are not national pay-per-view
distributors for purposes of Section 10(B).
(C) Distributors Most Favored Nations: The Service agrees that during
---------------------------------
the Term hereof, if the Service accepts fees for any other Similar Sports
Entertainment Pay-Per-View Wrestling Event(s), as defined in Section 10.0 (D)
below, which are less favorable to the Service than the Viewer's Choice fees
payable herein, the Service shall notify Distributor accordingly and shall
accept from Distributor such lesser fees for the next Video Program and all
subsequent Video Programs. The Service agrees that it will replay the
Distributor's Video Programs no less than the same number of times that it
replays any other Similar Sports Entertainment Pay-Per-View Wrestling Event,
provided the replays are economically beneficial to the Service.
(D) Similar Sports Entertainment Pay-Per-View Wrestling Events:
----------------------------------------------------------
Similar Sports Entertainment Pay-Per-View Wrestling Event is defined as a sports
entertainment pay-
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per-view wrestling event in which the outcomes are predetermined; and it does
not include the Olympics, amateur wrestling events or similar combat sports
where the outcome is not predetermined.
(E) DBS Most Favored Nations: Distributor agrees that the PrimeStar
------------------------
Affiliate Revenue Percentage shall be no less favorable than the Affiliate
Revenue Percentage paid to a DBS provider; notwithstanding the above, the
Distributor may provide additional compensation, in the Distributor's sole
discretion, to either PrimeStar or any other DBS provider for additional
services provided, and Distributor shall offer the same opportunity to Prime
Star.
(F) Last Right of Refusal: Notwithstanding anything to the contrary
---------------------
set forth above, the Distributor may offer any PPV video program other than the
Video Programs to any other Provider or anyone else under terms and conditions
similar to or different from those set forth above in this Agreement. However,
before Distributor may enter into an agreement with any entity other than
Service with respect to such PPV video program, Distributor must first provide
Service five (5) business days to match the terms and conditions proposed by
Distributor.
11.0 TAXES:
The Service and/or its Affiliates shall be obligated to pay all applicable
state and local taxes for the licensing, transmission, cablecast, exhibition
and/or sale of the Video Programs within the Territory, including without
limitation sales taxes, use taxes, excise taxes, franchise taxes and other
special taxes that may apply to the licensing and/or exhibition of the Video
Programs. Notwithstanding the foregoing, this Section 11 does not apply to
Distributor's obligation to pay its own state and/or local taxes or taxes
relating to merchandise sold by Distributor through the Video Programs or taxes
specifically levied against the Distributor.
12.0 LICENSE COSTS:
Except as otherwise specifically provided for in this Agreement, the
Service and or its Affiliates shall be responsible for all costs and expenses
arising in connection with its exercise of any and all rights hereunder,
including, without limitation: all reception and downlink equipment, all
decoding equipment, all transmission and/or other equipment used by the
Affiliates to transmit the television signal for the Video Programs from the
Service's downlink facility to the Affiliates and all equipment used by the
Affiliates to cablecast and exhibit the Video Programs to the Pay-Per-View
Subscribers. In no event shall Service or its Affiliates have any obligation to
purchase, rent or lease any such equipment, whatsoever, from Distributor or any
equipment supplier.
13.0 ACCOUNTING STATEMENTS:
(A) The Service and the Affiliates shall prepare, keep and maintain
complete and accurate books and records pertaining to the Video Programs and the
number of Pay-Per-View Subscribers, which books and records shall, at a minimum,
consist of the following:
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(i) A hardcopy listing (paper, electronic storage media, fiche
or microfilm) of the customer billing account numbers (not to include the
customer name and address) of Pay-Per-View Subscribers who ordered the Video
Programs, which listing must agree in total Gross Revenues with the information
set forth in the Final Accounting Statement submitted by the Service to
Distributor on each Video Program; and
(ii) A hardcopy (paper, electronic storage media, fiche or
microfilm) of the Affiliate's regular customer xxxxxxxx for the period (usually
one to two months) during which the Affiliate billed the Pay-Per-View
Subscribers for being able to watch the Video Programs.
All such books and records are to be kept and maintained by the Service and/or
Affiliates at their principal places of business as follows: Service shall keep
records for two years and the Affiliates for one year for all Video Programs.
The Service shall notify its Affiliates of the record keeping requirements and
provide notice that in the event that an Affiliate fails to keep such records,
Distributor may withhold any or all of its future Video Programs from such
Affiliate(s). The Service shall use reasonable efforts to ensure that the
Affiliates are informed of these requirements on an annual basis.
(B) The Service shall provide to Distributor by overnight delivery:
(i) A written Preliminary Report in a computerized format
mutually acceptable to Distributor and Service of the information to be entered
on the Final Accounting Statement for the applicable Video Program shall be
delivered to the Distributor as follows: three (3) business days after the Live
Event containing approximately 3 million addressable subscribers and five (5)
business days after the Live Event containing approximately 5 million
addressable subscribers.
(ii) An actual final carriage report, which shall list all
systems that the Service has addressed for this Live Event, shall be delivered
to the Distributor within five business days after the Live Event.
Upon execution of this Agreement the Service must advise Distributor as to a
contact (with telephone number) whom Distributor may call to obtain these
reports.
(C) The Service shall complete the Final Accounting Statement in the
form of Schedule B attached hereto for each Affiliate and forward all Final
Accounting Statements for the Affiliates to Distributor along with payment, as
set forth in Section 15.
14.0 AUDIT: The Distributor has the right to audit the Service and the
Service's Affiliates' books and records for the Video Programs.
(A) Audit of the Service Books and Records: While this Agreement
remains in effect and for two years thereafter, but not to exceed IRS record
retention requirements, the Service shall keep full and accurate books of
account and copies of all documents and other material relating to enforcement
of the Distributor's rights under this Agreement at the Service's
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principal office. Distributor, by its duly authorized agents and
representatives, shall have the right upon reasonable prior written notice to
Service, to audit such books, documents, and other material, shall have access
thereto during ordinary business hours, and shall be at liberty to make copies
of such books, documents, and other material. At Distributor's request, the
Service shall provide an authorized employee to assist in the examination of the
Service's records.
(B) Audit of Affiliates Books and Records: While this Agreement
remains in effect and for one (1) year thereafter, but not to exceed IRS record
retention requirements, the Affiliate shall keep full and accurate books of
account and copies of all documents and other material relating to this
Agreement at the Affiliate's principal offices. Distributor may designate an
independent CPA accounting firm and direct the Service upon reasonable prior
written notice to Service to engage the independent CPA accounting firm to
conduct an "Audit", during ordinary business hours, of any one or more
Affiliate's books and records relating to each video program in order to insure
that the Affiliate's Final Accounting Statement for the applicable Video Program
is complete and contains the customer billing account numbers (not to include
the customer name and address) of the Pay-Per-View Subscribers who ordered the
Video Program. The independent accounting firm may randomly select customer
xxxxxxxx from the Affiliate's entire customer billing records for the period of
months in which the Video Program was billed to determine whether all Pay-Per-
View Subscribers ordering the Video Program appear on the list supporting its
Final Accounting Statement. The independent accounting firm shall not retain
any Affiliate's customer billing records. The cost of the Audit will be borne
by Distributor except as provided in section 14(C). In the event an Affiliate
does not designate an authorized employee to assist in the examination of the
Affiliate's records and, therefore, Distributor is unable to verify the accuracy
of Affiliate's Final Accounting Statement, then Service and Distributor may
mutually decide to have Service withhold all of Distributor's future Video
Programs from such Affiliate.
(C) If an audit reveals that the Service or any Affiliate under
reported any financial item related to the information set forth on the Final
Accounting Statement or otherwise, by more than five percent (5%) in addition to
any other rights and remedies Distributor may have, Distributor shall be
entitled to recover from the Service all costs and expenses incurred to conduct
its audit of the Service or of any specific Affiliate and to enforce the
collection of such additional monies due.
(D) The audit shall be in a professional and expeditious manner and
there may not be more than one (1) audit per year.
15.0 PAYMENT:
The Service shall pay to Distributor the applicable License Fee from all of
the Affiliates less the Service's VC Fees (the "License Fee") as follows:
(A) Forty-five (45) days following delivery of the applicable Video
Program, the Service shall remit to Distributor at least fifty percent (50%) of
the License Fee for the Program along with the Final Accounting Statements; as
agreed in Section 13 above.
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(B) After forty-five (45) days following the delivery of the
applicable Video Program, the Service shall within two (2) business days of
receipt, remit to Distributor such additional unpaid portions of the License Fee
it receives during the period following the 45th (forty-fifth) day up to the
75th (seventy-fifth) day of any Gross Revenue from its Affiliates;
(C) Seventy-five (75) days after delivery of the applicable Video
Program, the Service shall remit to Distributor at least seventy-five percent
(75%) of the License Fee;
(D) Ninety (90) days after delivery of the applicable Video Program,
the Service shall remit to Distributor at least ninety percent (90%) of the
License Fee;
(E) One hundred twenty (120) days after delivery of the applicable
Video Program, the Service shall remit to Distributor one hundred percent (100%)
of the License Fee; or, in lieu thereof, the Service agrees to withhold all of
the Distributor's future Video Programs at the Distributor's instruction from
any Affiliate that has failed to pay any License Fee when due, until the License
Fee with interest has been paid.
(F) After 120 days, Distributor shall be authorized as the Service's
agent (where permissible under state law) to collect any sums the Affiliate owes
the Service, remitting the Service's share of such funds, if any, to the
Service. The Service agrees to withhold all of the Distributor's future Video
Programs at the Distributor's instruction from any Affiliate that has failed to
pay any License Fee when due, unless the Service shall have paid the Affiliate's
License Fee, until the License Fee with interest has been paid.
(G) The License Fee is due and payable in accordance with the Final
Accounting Statement, regardless of whether or not the Affiliates actually xxxx
or collect any sums from their Pay-Per-View Subscribers for being able to watch
the Video Programs.
(H) The License Fee, or any portion thereof, if not received when due
and payable in accordance with this Section 15, shall bear interest at the rate
of one and one-half percent (1 1/2%) per month computed from the original due
date until paid; provided, however, that if the foregoing rate shall be in
excess of the maximum permitted by law in the jurisdiction where such debt
accrues, then such interest rate shall be adjusted downwards to the maximum
permitted by applicable law. Distributor's acceptance of any payment after its
due date shall not constitute a waiver by Distributor of any of its rights
hereunder. Subject to Section 15 (M), the original due date is fifty percent
(50%) of the License Fee at forty-five (45) days, seventy-five percent (75%) of
the License Fee at seventy-five (75) days, ninety percent (90%) of the License
Fee at ninety (90) days and one hundred percent (100%) of the License Fee at one
hundred twenty (120) days subject to section 15(E) above. As an example if only
thirty percent (30%) of the License Fees were paid in forty-five (45) days,
interest would accrue on the unpaid balance from forty-five (45) days until
paid. Failure to render payments when due shall be deemed a material breach of
this Agreement. However, the Service shall have 10 business days after written
notice thereof from Distributor to pay to Distributor all balances due, plus
interest accumulated thereon. Distributor shall have the right to terminate the
Term of this Agreement with no further notice required if all unpaid balances,
with all interest accumulated thereon, have
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not been paid by the expiration of said ten (10) day period. Furthermore, at
that time, all other unpaid balances under this Agreement shall become
immediately due and payable to Distributor.
(I) All payments of the License Fee, or any portion thereof shall be
made by Federal Wire Transfer.
The Final Accounting statement shall be sent by overnight delivery of a
computerized format mutually agreed upon on the same day as the wire transfer is
initiated.
(J) All reports and schedules that detail the Service's Affiliates
shall include Distributor's License Number (LICN).
(K) All Encore Presentations are separate Video Programs. Service will
exercise reasonable efforts to report the Encore Presentations separately
pursuant to the terms hereof from the results of the broadcast of the original
Video Program.
(L) Reporting and additional payments: Service shall provide a
computerized report, mutually agreed upon, with each payment and in thirty (30)
day increments following the one hundred twenty (120) day payment until all
Affiliates have been reported. In addition, Service shall provide the
Distributor with a "Service's promoter's report" (Exhibit 1 attached) on a
monthly basis, with the additional payment due Distributor, if any, until 100%
of the Systems have been reported.
(M) Payment Terms Extension: If an Live Event occurs during the first
-----------------------
fifteen (15) days of the month, an additional fifteen (15) days shall be added
to the dates set forth in Sections 15 (A) through (F) above.
(N) (1) All Events which aired in 1997 and the first quarter of 1998
will be finally accounted for and settled ("Final Settlement") by March 31, 1999
using the methodology set forth in N(2) below. Beginning with the April, 1998
Event, all Events will have a Final Settlement no later than one (1) year after
the end of the calendar quarter in which the Event first airs. All Events
airing in any calendar quarter will have a Final Settlement at the same time.
For example, the Events that aired in October, 1998, November, 1998 and
December, 1998 will all have a Final Settlement on or before December 31, 1999.
(2) At the date of the Final Settlement, the average buy rate
for any Event for systems that have reported and paid with respect to that Event
to that point shall be referred to as the "Buy Rate". If at the date of the
Final Settlement, Service has received Buy Rate information and payments for an
Event from less than ninety-eight percent (98%) of all addressable subscribers,
Service shall pay Distributor at one hundred percent (100%) of the Buy Rate for
those unreported subscribers until ninety-eight percent (98%) of all addressable
subscribers are accounted for, and at ten percent (10%) of the Buy Rate for the
remaining two percent (2%) of unreported addressable subscribers for that Event.
If at the date of the Final Settlement, Service has received Buy Rate
information and payments from at least ninety-eight percent (98%) of all
addressable subscribers, Service shall pay Distributor at ten percent (10%)
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of the Buy Rate for that Event for those remaining unreported addressable
subscribers. Service shall no longer be obligated to report to Distributor
regarding Events after the Final Settlement date.
(3) All Events which aired during the period January 1, 1994
through December 31, 1996 are hereby settled as follows: The projection made by
Service that a total of ***** more than the ultimate amount due on these Events
was paid to Distributor is hereby accepted by Distributor as the basis for
reimbursement to Service of the overpayment. This amount will be deducted from
money otherwise due to Distributor at the time of the Final Settlement for the
Events for 1997 and the first quarter of 1998. If the amount otherwise due to
Distributor at the time of the Final Settlement is less than *****, then the
balance of overpayment will be deducted from the next regularly scheduled
payment to Distributor for an Event. There will thereafter be no further
reporting by Service to Distributor on Events in the 1994-1996 time period or
prior thereto.
16.0 MARKETING OF PROGRAMS:
16.1 It is of the essence of this understanding that Distributor controls
all marketing campaigns including content, market approach, direct affiliate
contacts, rebate plans, and actual advertising in whatever media to promote the
Video Programs and to solicit subscriber activity. Marketing activities in
connection with the Video Programs to supplement those of Distributor subject to
Distributor's reasonable and timely approval.
16.2 Any marketing program effected by Distributor shall not knowingly
indiscriminately favor the Distributor Affiliate base or Request's Affiliate
base to the detriment of both service's Affiliates.
16.3 The Service shall work with its Affiliates and Distributor and shall
use every reasonable effort to maximize the total number of Pay-Per-View
Subscribers and total Pay-Per-View revenue from exhibition of the Video
Programs. Furthermore, Distributor shall make available to both services'
Affiliates all promotional and advertising materials which Distributor makes
available to the Distributor Affiliate base, on no less favorable terms and
conditions than offered to the Distributor Affiliate base.
16.4 Guides:
(A) Service Guides: The Service shall make available, if the Service
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publishes a guide, not less than one (1) partial guide cover (if produced by the
Service) shall cite typographical mentions of all of other Video Programs
identified in Section 1.1 on other guide covers and use reasonable efforts to
cite future events in the same manner as currently published for each twelve
month period of the License along with placement of advertising regarding each
of the Distributor's Video Programs on the Service's guides and billstuffers and
the Service shall give Distributor a prominent position within any such
published guides and billstuffers.
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(B) Affiliate Guides: In the event that the Service does not publish
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a guide, the Service shall use commercially reasonable efforts to encourage the
Affiliates that publish a guide to promote the Video Programs as described in
Section 16.4(A) above.
16.5 Video Program Dates: Distributor shall advise the Service of each
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Video Program's scheduling no later than ninety (90) days before the first Video
Program to be delivered by Distributor in each twelve month period, and such
advise shall to the best of Distributor's ability at that time, incorporate
proposed dates, times and suggested retail prices for the remaining Video
Programs to be delivered in the applicable twelve month period. Distributor
shall use reasonable efforts to keep the Service advised of all relevant
information including any changes regarding the Video Programs as soon as
Distributor has knowledge thereof. Service shall confirm/deny the Distributor's
proposed dates within thirty (30) days of their receipt thereof. Such dates
shall not be more than eighteen (18) months in the future.
16.6 As to all such promotional and publicity materials, the Service shall
comply with the Distributor's instructions respecting sequence, type style,
relative size and prominence, and content of screen and advertising credits; and
the Service shall not in any way change credits contained in any material
furnished by the Distributor. Service shall indemnify the Distributor and hold
it harmless from any and all claims, damages, costs or expenses (including
reasonable attorney's fees) for breach by the Service of the restrictions and
obligations set forth in this Section 16.6.
16.7 The Service and its Affiliates shall not use the names and/or
likeness of any character, person or entity appearing in, or connected with
either the Live Event or any Video Program for any purpose other than
advertising such Video Program. Furthermore, the Service and its Affiliates
shall not use the names and/or likeness so as to constitute an endorsement or
testimonial, either expressed or implied, of any party, product, service, or
commercial venture.
16.8 The Service and its Affiliates shall not use the Distributor's name,
trademark, servicemark or logo; or the name, trademark, servicemark or logo of
any person or entity appearing in the Video Programs, in any manner whatsoever,
other than as furnished in the Distributor's publicity and promotional
materials.
16.9 The Service and its Affiliates shall not transmit, exhibit,
circulate, or otherwise use any of the promotional or publicity materials
furnished pursuant to this section 16 after delivery of the Video Programs,
without the Distributor's prior written consent.
16.10 The Service and its Affiliates shall not use or permit others to use
any of the promotional or publicity material furnished pursuant to this Section
16 for joint advertising campaigns of the Video Programs and any other Video
Programs featuring sports and/or entertainment activities similar to those
contained in any such Video Programs without the Distributor's written consent;
nor shall Service or its Affiliates engage in or permit others to engage in any
such joint advertising, promotion or publicity arrangements or campaigns, except
as otherwise expressly provided in this Section 16.
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16.11 The Service and its Affiliates shall not publish or distribute its
own promotional, publicity, advertising or display material for the Video
Programs without the Distributor's prior written consent, which shall not
unreasonably be withheld. The Service and Affiliates may express mail, or FAX
proposed materials to the Distributor for approval.
16.12 Omitted.
16.13 Interstitial Promotion: Service shall provide the Distributor,
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without any further remuneration, interstitial on air promotion time. Service
shall have the right, in its sole discretion, to approve all promotional
materials appearing on its channels. In the event promotional material is found
to be unacceptable, Service shall inform Distributor in writing of such changes
to make the promotional material acceptable. In the event Distributor fails to
provide acceptable promotional materials in a timely manner, Service shall not
be obligated to air the promotional materials for such Live Event. All
promotional materials shall be at the sole expense of Distributor and shall be
limited to marketing of the Video Program(s).
16.14 Omitted.
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16.15 PPV Promotional Show: Service shall provide commercial reasonable
--------------------
efforts to inform and encourage the Affiliates to enable all viewers to see a
thirty (30) minute PPV promotional show titled "Free For All" for each of the
Video Programs, so that all viewers may see the show without charge. The show
shall be tasteful.
16.16 Added Value Offers: Service shall use commercially reasonable
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efforts to communicate all mutually agreed upon added value offers for each
Video Program to the Affiliates and their subscribers.
17.0 REASONABLE EFFORTS: The Service and its Affiliates shall use every
reasonable effort to exploit the Pay-Per-View television market in the Territory
and the Service will not knowingly discriminate against the Video Programs in
favor of any other programming which it transmits, cablecasts and/or exhibits.
In addition, the Service and its Affiliates shall use every reasonable effort to
ensure that the signal received by each Pay-Per-View Subscriber shall be equal
in quality to the signal of other cable television channels regularly received
by their subscribers.
17.1 The Service and the Affiliates shall not impose any charge upon the
Pay-Per-View Subscribers for the right to watch the Video Programs other than
its customary and regular cable fee and the Pay-Per-View Charge for each Video
Program, excepting such other charges as expressly set forth herein respecting
late fees, electronic order taking fees, remote control fees, decoder fees and
club fees.
17.2 The Service shall use reasonable efforts to ensure that the
Affiliates shall cablecast and exhibit the Video Programs to their Pay-Per-View
Subscribers with one-way and two-way cable communications service; and shall not
discriminate against one-way subscribers
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by refusing to cablecast or exhibit the Video Programs to them unless they
subscribe to and/or pay for two-way cable communication service.
17.3 The Service and its Affiliates shall not package, pool or tie the
transmission, cablecasting and/or exhibition of the Video Programs the
transmission, cablecasting and/or exhibition of any other video program or
programs whatsoever. The Video Programs shall be priced and sold independently
of all other programming, and shall not be priced or sold by the Service or its
Affiliates with any other Pay-Per-View program.
18.0 PROTECTION PERIOD: In order to maximize the sales and marketing
opportunities for the Video Program:
18.1 The Distributor shall not distribute or transmit by means of Pay-Per-
View television any other video program featuring Similar Sports Entertainment
Pay-Per-View Wrestling Event(s) to those contained in the applicable Video
Program for a period commencing seventy-two (72) hours prior to such Video
Program and continuing for one (1) hour after the broadcast of such Video
Program. This provision shall not apply to either the Encore Presentations,
Authorized Replays, or to the Distributor's regularly scheduled broadcast and/or
cablecast of television programming.
18.2 The Service shall not advertise, market, sell, transmit, cablecast
and/or exhibit any Pay-Per-View video program featuring Similar Sports
Entertainment Pay-PerView Wrestling Event(s) commencing seventy-two (72) hours
prior to the broadcast of such Video Program and continuing for one (1) hour
after the broadcast of the applicable Video Program. This provision shall not
apply to either the Encore Presentations, Authorized Replays, or to
Distributor's regularly scheduled broadcast and/or cablecast of television
programming.
18.3 Other Distribution Holdbacks: The Distributor retains the rights to
distribute the Video Programs via any other medium; provided, however, that
Distributor shall not license the exhibition of the Video Programs during the
first thirty (30) days following their Original Presentation hereunder by means
of home video, free, pay or basic cable television in the Territory. In
addition, Distributor shall not permit the prepromotion of the Video Programs in
the foregoing media for a period of twenty one (21) days following their
Original Presentation hereunder.
18.4 Omitted.
18.5 Blackout: Distributor has the right to black out a 50 mile area
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surrounding a Pay-Per-View event's original presentation on the day of the show,
except that if the event takes place in an arena seating 25,000 or more persons,
the blacked out area shall be 75 miles. The blackout shall not apply to
PrimeStar or any other DBS provider. Furthermore, Distributor will notify the
Service in writing ninety days in advance of any such blackout.
19.0 MUSIC PERFORMANCE RIGHTS:
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With respect to each musical composition contained in the Video Programs,
there shall be no clearance or rights payments due from the Service or its
Affiliates with respect to the use of the music in the Video Programs and the
Distributor shall make sure the performing rights are:
(A) Duly licensed for the Video Programs through the American Society for
Composers, Authors and Publishers (ASCAP), Broadcast Music Inc. (BMI) or SESAC,
Inc.; or
(B) Owned or controlled by the Distributor to the extent necessary to
permit exhibition of the Video Programs on cable television; or
(C) In the public domain.
The Distributor's only liability, if any, for breach of this Section 19 shall be
by way of indemnity, pursuant to Section 21.
20.0 INSURANCE FOR SIGNAL DELIVERY:
The Distributor and the Service shall each be responsible for insuring
their respective interests.
20.1 The Distributor may, at its own option and at its own expense, obtain
insurance to cover delivery of the television signal carrying the Video Programs
to the Service; and the Distributor shall be the sole insured and beneficiary of
such insurance policy. The Service shall have no rights whatsoever to the
Distributor's proceeds. If any of the Video Programs are not delivered to the
Service for any reason beyond the Distributor's reasonable control as set forth
in Section 6, the Distributor shall not be in breach of this Agreement, but will
refund all sums paid (if any) by the Service to the Distributor. The
Distributor is not responsible for and does not insure the Service or any of its
Affiliates for any failure in generating or transmitting the television signal,
any failure of the satellite, any failure of decoder, any failure to deliver the
live satellite feed and/or the satellite replay feed; or any failure of
facilities, equipment or transmission lines used to receive, decode, cablecast
and exhibit the Video Programs.
20.2 The Service may, at its option, and its own expense, obtain insurance
to cover any failure to generate, transmit or deliver the television signal from
the Service's downlink facility; any failure of its own facilities or equipment
used to receive, decode and transmit the Video Program to its Affiliates; and
any failure of the Affiliates' facilities, equipment or transmission lines used
to cablecast and exhibit the Video Programs.
21.0 DISTRIBUTOR'S INDEMNIFICATION:
The Distributor shall indemnify the Service, its officers, agents,
directors and employees from all liability to third parties including its
Affiliates for damages, costs and expenses (including, without limitation,
reasonable attorney's fees) but not for liability to each other except for music
clearance or rights payments incurred by reason of:
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(A) The Distributor's violation of any of the terms and conditions of this
License Agreement; or
(B) The Distributor's acts in connection with the generation and
transmission of the television signal carrying the Video Programs, or arising
out of alleged defects in any product or device utilized by the Distributor in
connection with the generation and transmission of the television signal; or
(C) Any claims for damages, suffered by any author, writer, composer,
producer or other person as a result of the infringement of their copyrighted
writings, music or expressions used in or appearing in the Video Programs; or
(D) Any claims for libel or slander of any person, firm or corporation as a
result of the Service's use of the Distributor's promotional and advertising
materials for the Video Programs, or the transmission, cablecast and/or
exhibition of the Video Programs; or
(E) Any claims for misuse, misappropriation, or infringement of any
trademark, tradename, publicity right, as well as the invasion of any privacy
right as a result of the transmission, cablecast, or exhibition of the Video
Programs or any use of the Distributor's advertising or promotional materials.
22.0 SERVICE'S INDEMNIFICATION:
The Service shall indemnify the Distributor, its officers, agents,
directors and employees from all liability to third parties, including its
Affiliates for damages, costs and expenses (including, without limitation,
reasonable attorney's fees) but not for liability to each other incurred by
reason of:
(A) The Service's violation of any of the terms and conditions of this
License Agreement; or
(B) The Service's acts in connection with the reception and transmission of
the Video Programs, or arising out of alleged defects in any product or device
utilized by the Service in connection with the reception, cablecasting and
exhibition of the Video Programs.
23.0 DEFAULT: If either party hereto defaults in any of its material
obligations hereunder or is adjudicated bankrupt or becomes insolvent or makes
an assignment for the benefit of creditors, or if a receiver, liquidator or
trustee is appointed for its assets or affairs, the other party hereto shall
have the right, in addition to whatever other remedies it may have under this
Agreement or at law, to terminate this Agreement.
23.1 The parties' rights under this Section 23 shall be in addition to
whatever rights or remedies they may have against one another at law or in
equity. The successful party shall be entitled to recover from the unsuccessful
party all reasonable attorney's fees, costs and expenses,
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separately with the Securities and Exchange Commission
including collection agency fees or other expenses incurred by the successful
party for protecting its rights in the event of default under this License
Agreement.
23.2 However, notwithstanding its default, the Distributor shall be
entitled to recover from the Service its reasonable attorney's fees, costs and
expenses, including collection agency fees or other costs, incurred by the
Distributor in collecting any License Fees or other amounts not paid by the
Service.
23.3 Breach: No breach of this Agreement shall be deemed material unless
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Service has failed to cure same within ten (10) business days after written
notice thereof from Distributor or failed to make good faith efforts to cure
same within said time period.
24.0 LIMITATIONS OF LIABILITY AND DAMAGES: Neither the Distributor nor the
Service and its Affiliates shall be liable to one another for direct, indirect,
consequential, punitive or exemplary damages, whether based in contract, tort or
any legal theory. Notwithstanding the foregoing, the Distributor shall be
permitted to pursue any and all available remedies against Service for Service's
failure to make any payments under this License Agreement.
25.0 FORCE MAJEURE: If the Distributor shall be prevented from transmitting and
delivering the Video Programs or the Service and its Affiliates shall be
prevented from receiving and transmitting the Video Programs by reason of Force
Majeure, then such party, as the case may be, shall be excused from its failure
to perform its obligations under this License Agreement. Force Majeure shall
mean any act of God, fire, flood, war, public disaster, any governmental or
quasi-governmental or regulatory commission or association enactment, decree
determination or action, regulation or order; any court imposed injunction; or
any other occurrence beyond such party's reasonable control which, despite their
reasonable efforts, prevents the delivery and/or exhibition of the Video
Program.
26.0 RELATIONSHIP OF THE PARTIES: Nothing contained in this License Agreement
shall be deemed to constitute either of the parties a joint venturer, partner or
agent or the other. Neither party shall hold itself out in any manner contrary
to the terms of this License Agreement and neither party shall become liable by
reason or any representation, act or omission of the other contrary to the
provisions of this License Agreement.
27.0 DUE AUTHORIZATION: The execution, delivery and performance of this License
Agreement by each party hereto has been duly authorized by all necessary
corporate action on behalf of the parties; requires no action by or in respect
of, or filing with, any governmental body, agency or official; and does not
violate, contravene or constitute a violation of any party's Certificate of
Incorporation, its By-laws, or any provision of any indenture, agreement,
judgment, injunction, order, decree or other instrument applicable to the party
or by which the party is bound. Furthermore, each party's execution, delivery
and performance of this License Agreement does not require any consent of any
other person or entity.
28.0 BINDING EFFECT; BENEFITS: This License Agreement shall be binding upon the
Distributor and the Service and their respective successors and assigns, and
shall inure to their
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benefit. Nothing in the License Agreement, expressed or implied, is intended to
or shall confer on any person other than the parties, or their respective
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this License Agreement.
29.0 ASSIGNMENT: This License Agreement, the License and all rights granted
herein are personal to each party; and each party agrees not to assign or
delegate any right or obligation under this License Agreement in whole or in
part, by operation of law or otherwise. Any party's purported assignment of, or
delegation, if any, shall be void and of no effect. Notwithstanding the
foregoing, Licensee shall be permitted to assign this License Agreement to a
limited liability company that Service represents and warrants will initially be
owned and/or controlled by the following MSO's: Time Warner Cable, TCI,
Comcast, Media One and Cox.
30.0 WAIVERS: A waiver by either party of any breach of default by the other
party under this License Agreement shall not be construed as a continuing waiver
of such breach or default, or a waiver of any other obligation under this
License Agreement.
31.0 NOTICES: All notices, statements, and other documents required to be given
to the Distributor or the Service shall be given in writing and sent, either by
personal delivery, by registered mail postage prepaid, or by mailgram to the
following address:
If to Distributor to:
Titan Sports, Inc.
Attention: Xxxxxx X. Xxxxxxx, Xx. Vice President and General Counsel
0000 Xxxx Xxxx Xxxxxx
P. O. Xxx 0000
Xxxxxxxx, XX 00000
If to Service to:
Viewer's Choice. L.L.C.
Attention: Vice President & General Counsel
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
(or such address as may be designated in writing by either party in a notice
conforming with this Section 31). The date of such mailing, personal delivery
or telegraphing shall be the date of delivery of such notice.
32.0 CONFIDENTIALITY: Other than as may be required by applicable law,
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government order or regulation; or by order or decree of any court of competent
jurisdiction, the parties agree that neither of them shall publicly divulge or
announce, or in any manner disclose, to any third party, excepting the Service's
Affiliates, any of the specific terms and conditions of this License Agreement
including, without limitation, any of the License Fees; and both parties warrant
and
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CONFIDENTIAL TREATMENT
*****[Deleted pursuant to a request for Confidential Treatment and filed
separately with the Securities and Exchange Commission
covenant to one another that none of their officers, directors, employees or
agents will do so either.
33.0 APPLICABLE LAW: This License Agreement and all matters and issues
collateral thereto shall be governed by the laws of the State of New York with
the same force and effect as is fully executed and to be fully performed
therein.
34.0 SEPARABILITY: Any term or provision of this License Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
License Agreement, or affecting the validity or enforceability of any of the
terms or provisions of this License Agreement in any other jurisdiction.
35.0 ANTITRUST VIOLATION: Notwithstanding anything to the contrary set forth
herein, Distributor shall have the immediate right to terminate this Agreement
should a court of competent jurisdiction order the break up of the Service
because it is in any way in violation of any applicable antitrust laws, rules or
regulations by virtue of its position as the sole or dominant pay-per-view
distributor in the Territory.
36.0 SECTION AND OTHER HEADINGS: The section and other headings contained in
this License Agreement are for reference purposes only and shall not be deemed
to be part of this License Agreement or to affect the meaning or interpretation
of this License Agreement.
37.0 ENTIRE AGREEMENT: This License Agreement (including the attached Schedules
and Addenda, if any) constitutes the entire License Agreement among the parties
and supersedes all prior License Agreements, understandings and arrangements,
oral or written, between them with respect to the subject matter of this License
Agreement. Furthermore, this License Agreement may not be changed or amended
except in writing making specific reference hereto and signed by both parties.
38.0 EXECUTION IN COUNTERPARTS: This License Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument.
[Rest of Page Intentionally Left Blank]
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CONFIDENTIAL TREATMENT
*****[Deleted pursuant to a request for Confidential Treatment and filed
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IN WITNESS WHEREOF, the parties hereto have executed this License Agreement
as of the date first written above.
TITAN SPORTS, INC. VIEWER'S CHOICE, L.L.C.
By:_______________________ By:_____________________________
Xxxxx X. XxXxxxx Xxxxxxx X. Xxxxx
President and Chief Executive Senior Vice President
Officer Programming
As required for post-Video Program Preliminary Reports, as set forth in section
13, the following is the name and telephone number of the person to contact
regarding the information to be contained on the Final Accounting Statement.
NAME: __________________
TITLE: __________________
PHONE: __________________
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