EXHIBIT 10(i)
Dealer No. 1266
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Distributor No. 1000
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STAR CHOICE TELEVISION NETWORK INCORPORATED
DEALER PROGRAMMING AGREEMENT
This Dealer Programming Agreement (the "Agreement") is made and
effective as of the 24 day of, June, 1997 by and between Star Choice
Television Network Incorporated ("SCTN") having a principal place of
business at 0000 Xxxxx 000 Xxxxxxx, Xxxxxxx, Xxx Xxxxxxxxx X0X 0X0, and
WestCoast Wireless Cable LTD., having a principal place of business at #00,
0000-000 XXX. Xxxxxxxxxx, XX X0Xx 0X0 ("Dealer").
INTRODUCTION
A. SCTN is the duly licensed and authorized distributor of Star
Choice Programming throughout Canada.
B. Dealer, acting as an independent contractor, desires to become
authorized, as a commissioned representative of SCTN, to solicit and take
Orders (as defined in Section 2.3 below) by end-users ("Subscribers") for
certain SCTN provided programming on a non-exclusive basis (an "Authorized
Dealer"), only from the "Authorized Premises" incorporated in Exhibit A.
C. SCTN desires to appoint Dealer as an authorized commissioned
representative in accordance with and subject to the terms and conditions
of this Agreement.
AGREEMENT
1. APPOINTMENT OF DEALER
1.1 SCTN appoints Dealer as a non-exclusive authorized commissioned
representative, to solicit and take Orders for SCTN provided programming
and/or programming packages (the "Programming"), subject to all the terms
and conditions of this Agreement. Dealer's appointment shall become
effective on the later to occur of the date that: (i) this Agreement has
been signed by both Dealer and SCTN and (ii) Dealer has been authorized by
Star Choice Marketing Inc. ("SCM") or its Authorized Distributor to
purchase Star Choice DTH Receivers (as defined in Section 2.2 below).
Dealer is only authorized, and shall limit its actions, to soliciting
Orders for Programming. Dealer is only authorized, and shall limit its
actions, to the solicitation and taking of Orders from Subscribers.
1.2 Dealer accepts its appointment as an Authorized Commissioned
Representative and agrees to use its best reasonable commercial efforts to
solicit Orders for Programming. Dealer understands that it may hold itself
out to the public as an Authorized Commissioned Representative of SCTN only
after fulfilling, and for so long as it continues to fulfill, all of the
requirements in this agreement and any other agreements between SCTN and/or
SCM and/or its Authorized Distributor and Dealer, to be entered into
contemporaneously with this Agreement, and only during the Term of this
Agreement.
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2. DEFINITIONS In addition to the capitalized terms defined else Wherein
this Agreement, the following definitions shall apply to this Agreement:
2.1 "Affiliate" shall mean any person or entity directly or
indirectly controlling, controlled By or Under common control with another
person or entity.
2.2 "Star Choice DTH Receiver" shall mean an MPEG-2 DVB/DigiCipher 11
compliant receiver manufactured or distributed by SCM and intended to be
utilized for the reception of programming authorized and distributed by
Star Choice Communications Incorporated and/or Star Choice Television
Network Incorporated and sold to Dealer by SCM or its authorized
distributor (s), such sale confirmed by tracing of serial number and Smart
Card number.
2.3 "Order" shall mean an activated order for certain Programming
which, in complete accordance with all the terms of this Agreement and the
agreement between Dealer and SCM, Dealer solicits and takes from a
Residential Location under the direction of and with the support of SCTN
and/or SCM, and which SCTN or SCM, in their sole discretion, accepts and
activates through authorization of a Star Choice DTH Receiver.
2.4 "Subscriber" means an individual at a Residential Location who
orders Programming from SCTN, who pays for Programming in full, and who
prior to the date on which SCTN activates the Programming, has never
received an audio, video, data or any other programming services from SCTN.
A Subscriber shall not include any individual who would otherwise qualify,
but whose equipment SCTN and/or SCM, in its reasonable discretion, declines
to activate, or any individual who purchased a Star Choice DTH Receiver or
other product which was installed and is used at a location outside of
Canada.
2.5 "Residential Location" shall mean a single family residential
dwelling (i.e. single family houses, apartments, condominiums, or other
dwellings used primarily for residential purposes); provided, however, in
no case shall any satellite master antenna television or private cable
company in a residential multiple dwelling unit (i.e. dormitories, etc.) be
considered a Residential Location. SCTN reserves the right to determine,
in its, sole discretion, whether a location constitutes a Residential
Location, or is more appropriately considered a commercial or non-
residential location.
3. PROGRAMMING
3.1 SCTN, in its sole discretion, shall determine the Programming
(including the packaging of that Programming) for which Dealer, under the
direction of and with the support of SCM, solicits and takes Orders. SCTN
may expand, reduce or otherwise modify Programming from time to time in its
sole discretion. Any changes shall be effective immediately upon
notification by SCTN or SCM, unless SCTN or SCM notifies Dealer of a
different effective date.
3.2 If at any time or for any reason SCTN changes the content of any
Programming or Programming package, Dealer's solicitation and taking of
Orders for the prior Programming or Programming package shall immediately
cease.
4. PRICES SCTN, in its sole discretion, shall determine the retail
prices for Programming. Dealer will solicit and take Orders for
Programming at the retail prices set by SCTN from time to time. SCTN may
increase, decrease or otherwise modify those prices from time to time in
its sole discretion. Any changes shall be effective immediately upon
notification by SCTN or SCM, unless SCTN or SCM notifies Dealer of a
different effective date.
5. SUBSCRIBER ORDER REQUIREMENTS Dealer, during the term of this
Agreement, agrees to achieve a sale, minimum of three (3) Orders for
Programming per month. If Dealer fails to achieve the monthly minimum for
two consecutive months, SCTN shall have the option, in its sole discretion,
to,
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among other things, terminate this Agreement. Failure of SCTN to take any
action in response to Dealer's failure to achieve monthly minimum Orders
for two consecutive months shall not preclude any subsequent action by SCTN
or be deemed a waiver by SUM of its right to take any action as set forth
by failure by Dealer to achieve Dealer's minimum monthly Order requirement
for any subsequent two consecutive months.
6. COMMISSIONS
6.1 Except for special provisions to accommodate the "roll-out"
period, commencing with tile first full calendar month a Subscriber
receives Programming, Dealer shall be entitled to a monthly commission with
respect to that Subscriber (a Commission"). Each Commission payment
(again, except for special provisions to accommodate the "roll-out" period)
shall be paid by SCTN or SCM approximately forty-five (45) days following
the last day of each calendar month for which a Commission is owed to
Dealer (on or about the fifteenth day of each month) Subject to the terms
and condition of this Agreement, Dealer shall continue to receive a
commission on or about the fifteenth day of each month through and
including file fifteenth day of the sixtieth month following the date of
the original Programming order from a Subscriber; however, in the event
that this Agreement expires and is not renewed, no further Commissions
shall be payable to the Dealer from the date of expiration.
6.2 Notwithstanding Section 6.1 above, Dealer shall not be entitled
to any Commission with respect to any Subscriber: (i) whose Programming is
canceled; (ii) who has not paid in full for the Programming; (iii) who has
been issued a credit or refund (to the extent of the credit or refund
issued); or (iv) whose Programming is otherwise terminated, disconnected or
deactivated for any reason.
6.3 Each month, in order to determine the Commissions to which Dealer
is entitled, SCTN or SCM shall calculate file retail price of the
Programming activated by SCTN that month for each Subscriber for which
Dealer is entitled to a commission (excluding any applicable taxes or other
governmental payments with respect to the Programming). SCTN or SCM shall
pay a commission rate to the Dealer for all Programming that is purchased
by Subscribers. Dealer's Commission Schedule is set forth in Exhibit C.
Commissions shall be paid only on Programming that is purchased by
Subscribers who have purchased Star Choice DTH Receivers sold by a Dealer
and installed and used at a Residential Location. SCTN and/or SCM, in its
sole discretion, shall determine whether Dealer is entitled to a
Commission.
6.4 SCTN or SCM shall have no obligation to pay Commissions to Dealer
with respect to any person who would otherwise be a Subscriber, but who was
already receiving any of the Programming, or any other audio, video, data
or other programming from SCTN on the date of the Order. In no event shall
Dealer be entitled to commissions with respect to Star Choice DTH Receivers
not confirmed by SCM is having been purchased by Dealer directly from SCM
or its authorized distributors.
6.5 The Dealer will not receive any Commissions if Dealer, through
its company or any Affiliated person or entity, distributes, markets or
sells any other DTH or Direct to Home (DTH) product or service in Canada,
with the exception of C-Band product and programming for C-Band receivers,
at any time during tile term of this Agreement.
6.6 SCTN or SCM shall deliver to Dealer with each payment of
Commissions, a summary statement (on paper or electronic media at SCTN's or
SCM's option) containing supporting information pertaining to the relevant
Commissions then payable to Dealer.
6.7 Dealer agrees to keep accurate books and records relating to
Commissions. Dealer agrees to include in those books and records the name,
address and telephone number of the Subscribers who purchased Product from
Dealer up to the time of the record review by SCTN or SCM. Dealer agrees
to provide this information to SCM on a monthly basis during the term of
the Agreement. Dealer agrees to maintain during the term of the Agreement
and for a period of 12 months after termination, accurate
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books and records of Commissions and to permit SCTN or SCM or its
representatives reasonable access to such books and records at Dealer
locations at any time upon reasonable notice from SCTN and/or SCM to Dealer
or during the term of this Agreement and for a period of 12 months after
termination. If Dealer fails to provide accurate books and records
relating to its sales of Programming, SCTN and/or SCM shall have the
option, in its sole discretion, to take either of the following measures:
(i) withhold accrued but unpaid Commissions; or (ii) not permit Dealer to
participate in any or all of SCM's programs.
6.8 In the event that Dealer for any reason does not qualify for a
Commission with respect to any Subscriber or any Star Choice DTH Receiver,
SCTN shall be entitled to activate Programming for that Subscriber without
payment of any Commission to Dealer.
6.9 In the event that Dealer is ever paid a Commission but the
Subscriber either fails to pay in full for the Programming, or a refund or
credit is issued to the Subscriber for any reason (SCTN and/or SCM shall
have the discretion to issue a credit or refund in its sole discretion),
Dealer shall be charged back the Commission paid, if any, relating to such
unpaid, credited or refunded portion.
6.10 In no event shall Dealer offset any amounts due to SCTN or SCM
from Dealer for any Commissions owed to Dealer by SCTN or SCM or any other
sums owed to Dealer by SCM against any amounts due to SCTN or SCM from
Dealer for any reason. In the event that the Commissions paid by SCTN or
SCM to Dealer exceed the amount to which Dealer was entitled, or if Dealer
is indebted to SCM for any other reason, Dealer acknowledges and agrees
that SCTN or SCM shall have the right to offset any such amounts due to SCM
from Dealer for any reason against any Commissions or other money otherwise
due to Dealer from SCTN or SCM. Further, should one or more contracts now
or hereafter exist between SCM and Dealer, or if SCM is holding funds or
equipment to be paid or disbursed to Dealer pursuant to business, dealings
between the parties not reflected in any contract (all such other contracts
and business dealings with SCM are herein collectively referred to as the
"Other Agreements"), SCTN or SCM may deduct from any amounts due or to
become due to Dealer under this Agreement any sums which Dealer owes to
SCM, whether or not then due, arising out of this Agreement or the Other
Agreements, as well is any and all amounts for which SCM may become liable
to third parties by reason of Dealer's acts in performing, or failing to
perform, Dealer's obligations under this Agreement or any of the Other
Agreements. Further, SCTN or SCM may withhold such sums from any monies
due or to become due to Dealer hereunder as SCM, in its sole discretion,
deem-, necessary to protect SCM from any loss, damage, or expense relating
to or in response to any claim or threatened claim of which SCM becomes
aware concerning Dealer or the performance of Dealer's duties hereunder.
SCTN's and/or SCM's right to money due and to become due hereunder shall
not be subject to any defense (except payment),offset, counterclaim, or
recoupment of Dealer whatsoever, including, but not limited to, any which
might raise from a breach of this Agreement by SCTN.
6.11 SCTN's calculation of Commissions and offset amounts shall be
binding absent manifest error. If, after the termination of this Agreement
SCTN or SCM has paid, or taken offsets against, all Commissions, then
Dealer shall pay to SCM, within five (5) days after the day on which Dealer
receives SCM's written notice thereof, all offset amounts which SCM has not
already recovered.
6.12 Dealer acknowledges and agrees that, in addition to any other
rights and remedies available, SCTN or SCM shall not pay any Commissions to
Dealer which would otherwise be due to Dealer for any reason in the event
that Dealer is in breach or default of this Agreement, and SCTN and/or SCM
shall have no liability to Dealer as a result thereof.
6.13 Under no circumstance shall Dealer collect any payment directly
from any Subscriber. In the event that notwithstanding Dealer's best
efforts to comply with this requirement, any Subscriber forwards any
payment to Dealer rather than to SCTN directly, Dealer shall immediately
forward the payment to SCTN without deduction or offset of any kind, and
shall instruct the Subscriber that all future payments must be made to SCTN
directly.
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6.14 Dealer acknowledges and agrees that the Commissions payable
pursuant to this Agreement constitute the sole Commissions or other fees
payable by SCTN or SCM to Dealer for Dealer solicitation and taking of
Orders for Programming, or for any other audio, video, data or other
programming provided by SCTN.
6.15 No payment to Dealer under this Agreement, whether in full or in
part, shall be deemed to operate as SCTN's acceptance or admission that
Dealer has complied with any provisions of this Agreement.
7. ORDERS
7.1 Dealer agrees to use its reasonable commercial efforts to solicit
and take Orders for Programming from Subscribers, and to use its best
commercial efforts to promote and enhance SCTN's and SCM's business,
reputation and goodwill. Dealer shall allow only its full-time employees
(and not any independent contractors, sub-agents or other person or entity)
to solicit, take or transmit any Orders, unless Dealer obtains SCTN's
and/or SCM's specific prior written consent to use of such other person or
entity, which consent may be withheld in SCTN's and/or SCM's sole
discretion.
7.2 Dealer shall not condition, tie or otherwise bundle any purchase
of Programming with tile purchase of other services or products other than
as specifically agreed to in writing by SCTN and/or SCM inn advance. In
tile event that Programming is sold by the Dealer at the same time as a
Star Choice DTH Receiver or other related equipment, the Programming price
shall be specifically and separately set forth on the sales slip. Unless
SCTN and/or SCM specifically approves of some other method of writing,
Dealer shall only permit the purchase of Programming to be accomplished if
at the time of the purchase, Dealer disclose to the Subscriber that the
Programming portion of the sale is being made by SCTN, the purchase is made
by the Subscriber, and the Programming purchase is directly between the
Subscriber and SCTN.
7.3 Dealer will promptly forward to SCTN all Orders for Programming
in the manner prescribed by SCTN from time to time. Dealer understands
that SCTN or SCM shall have the right, in its discretion, to accept or
reject, in whole or in part, all Orders for Programming.
7.4 Dealer shall take all actions and refrain from taking any action,
as reasonably requested by SCTN and/or SCM in connection with the
marketing, advertisement, promotion of, or taking of Orders and Dealer
shall cooperate by supplying SCTN and/or SCM with information relating to
those actions as SCTN and SCM reasonably requests.
8. USE OF TRADEMARKS, SERVICE MARKS AND TRADE NAMES BY DEALER.
Dealer shall sign the Trademark License Agreement, in the form
attached as Exhibit B hereto.
9. CONDUCT OF BUSINESS
9.1 BUSINESS ETHICS. Dealer shall not engage in any activity or
business transaction which could be considered unethical, as determined by
SCM, or damaging to SCTN's or SCM's image or goodwill in any way. Dealer
shall under no circumstances take action which could be considered
disparaging to SCTN or SCM. Dealer shall comply with all applicable
governmental statutes, laws, rules, regulations, ordinances, codes,
directives, and orders (whether federal, provincial, municipal or
otherwise) ("Laws"), and Dealer is solely responsible for its compliance
with all Laws which apply to its obligations under this Dealer Programming
Agreement.
9.2 SIGNAL THEFT. Dealer shall not directly or indirectly; (i)
engage in any signal theft, piracy or similar activities; (ii) alter any
Star Choice DTH Receivers or "Smart Cards", or any other equipment
compatible with programming delivered by SCTN to be capable of signal the
(or for any other
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reason without (lie express written consent of SCTN and/or SCM); (iii) sell
any equipment altered to permit signal theft or other piracy; or (iv) aid
any others in engaging in any of the above described activities. Dealer
shall immediately notify SCTN and/or SCM if it becomes aware of any such
activity.
10. TERM AND TERMINATION
10.1 TERM. Subject to Section 9.2 of this Agreement, and other
provisions providing for early termination, this Agreement is for a fixed
term of one-year (365 days) commencing on ______________,1997. This
Agreement is not automatically renewable. Except as provided to the
contrary in this Agreement, any obligations of the parties arising prior to
expiration or termination of this Agreement shall survive expiration or
termination and continue in full force and effect. The acceptance of any
Order from, or the sale of any products (including, but not limited to, any
product bearing the Trademark) to the Dealer after the expiration or
termination of this Agreement shall not be construed as a renewal or
extension of this Agreement. Rather, any such continued sales, if any,
shall be considered as sales on a non-exclusive basis and on such terms as
SCM may impose, in its sole discretion.
10.2 TERMINATION BY EITHER PARTY UPON DEFAULT. This Agreement may be
terminated by a party (the "Affected Party"), in accordance with the
procedures set forth in Section 10.4 below, upon the occurrence of any of
the following with respect to the other party (the "Other Party").
(a) The Other Party commits a payment default which is not cured
within ten (10) days of receipt (if written notice from the Affected Party.
(b) The Other Party defaults on any obligation or breaches any
representation, warranty or covenant in this Agreement or the Trademark
License Agreement (regardless of whether breach or default of such
obligation, representation, warranty or covenant is designated as giving
rise to a termination right), and -such default or breach is not cured
within ten (10) days of receipt of written notice from the Affected Party.
The Parties agree that all obligations, representation, warranties and
covenants contained in this Agreement, whether or not specifically
designated as such, are material to the agreement of the parties to enter
into and continue this Agreement.
10.3 TERMINATION BY SCTN. This Agreement shall terminate
automatically should any of the following occur, unless SCTN and/or SCM
notifies the Dealer to the contrary: (i) Dealer becomes insolvent or
voluntary or involuntary bankruptcy, insolvency or similar proceedings are
instituted against Dealer; (ii) Dealer, for more than twenty (20)
consecutive days, fails to maintain operations as a going business; (iii)
Dealer, or any officer, director, substantial shareholder or principal of
the Dealer is convicted in a court (if competent jurisdiction of any
offenses substantially related to the business conducted by the Dealer in
connection with this Agreement or of any offense punishable by a term of
imprisonment; (iv) Dealer fails to comply with any applicable federal,
provincial or local law or regulation or engages in any practice which is
determined to be an illegal or unfair trade practice in violation of any
applicable federal, provincial or local law or regulation; (v) Dealer's
falsification of any records or reports required hereunder; (vi) Dealer's
failure to renew, or the loss, due to suspension, cancellation or
revocation, for a period of fifteen (15) days or more, of any license,
permit or similar document or authority required by law or governmental
authority having jurisdiction, that is necessary in carrying out the
provisions of this Agreement and in maintaining its corporate or other
business status, as in effect as of the effective date of this Agreement;
(vii) Dealer makes any representation or promise on behalf of SCTN and/or
SCM inconsistent with the representations or promises that SCTN has
specifically authorized Dealer to make on behalf of SCTN and/or SCM in this
Agreement; (viii) any actual or alleged fraud, misrepresentation or alleged
action of any sort made by Dealer in connection with Other Agreements; (ix)
breach or default of any of the terms in the Trademark License Agreement,
set forth in Exhibit B herein; (x) the Trademark License Agreement, set
forth in Exhibit B, terminates for any reason; or (xi) the agreement
between SCM and Dealer or between SCM's Authorized Distributor and Dealer,
which is entered into contemporaneously with this Agreement, terminates; or
(xii) Dealer's failure to achieve minimum monthly Orders requirements for
Programming as set out in Article 5 above.
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10.4 TERMINATION OF AGREEMENT. Dealer agrees that if this Agreement
terminates for any reason, then Dealer shall:
10.4.1 immediately discontinue all sales of Programming, and
immediately cease to represent and/or imply to any person or entity
that Dealer is an Authorized Dealer or Authorized Commissioned
Representative for SCTN;
10.4.2 immediately discontinue all use of the Trademark
associated in any way whatsoever with the Programming, including,
without limitation, DTH, Star Choice and all Trademarks or names
associated with any programming included in the Programming.
Moreover, the Trademark License Agreement set forth in Exhibit B shall
also terminate.
10.4.3 deliver to SCM, or destroy, at SCM's option all
tangible things of every kind in the possession or control of Dealer
that bear any of the Trademarks;
10.4.4 upon request by SCM, certify in writing to SCM that
such delivery or destruction has taken place; and
10.4.5 at the option of SCM, cease to be authorized to
purchase StarChoice DTH Receivers.
11. FORFEITURE OF COMMISSIONS AFTER TERMINATION
Commissions shall be paid by SCTN or SCM to Dealer during the term of
the Agreement; however, immediately following the termination of the
Agreement, SCTN or SCM will end all payments of Commissions, to the Dealer
and SCTN or SCM shall have no liability to the Dealer, and Dealer shall
have no right to require that SCTN or SCM continue any payment of
Commissions.
12. STATUS OF DEALER
12.1 DEALER NOT A PARTNER OR EMPLOYEE. It is understood and agreed
that Dealer is an independent contractor, who solicits and takes Orders for
Programming as a commissioned sales representative of SCTN. It is further
understood and agreed that Dealer has no right or authority to make any
representation, promise or agreement on behalf of SCTN and/or SCM except
for such representations, promises, or agreements as SCTN and/or SCM shall
specifically authorize, in writing, Dealer to make. Any such inconsistent
or additional warranty or representation made by Dealer shall constitute a
breach of, and serve as grounds for, an automatic termination of this
Agreement pursuant to Section 10.3.
12.1.1 The relationship of the parties hereto is that of
independent contractors. Dealer shall conduct its business as an
independent contractor, and all persons employed in the conduct of
such business shall be Dealer's employees only.
12.1.2 Dealer, at its sole expense, shall provide and maintain
facilities, vehicles, tools and equipment as may be proper for
operations under this Agreement, and from which it shall operate, and
SCTN and/or SCM shall not have any responsibility or liability
relating to said facilities, vehicles, tools and equipment.
12.1.3 Dealer shall have no authority to employ persons on
behalf of SCTN and/or SCM and no employees of Dealer shall be deemed
to be employees or agents of SCTN and/or SCM. No employees of Dealer
shall be represented as, or represent themselves as, employees or
partners of SCTN and/or SCM, and shall not under any circumstance
represent that they have any greater rights than those specifically
provided in this Agreement Dealer shall have the sole
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and exclusive right to hire, transfer, suspend, layoff, recall,
promote, assign, discipline, adjust grievances and discharge its
employees. Dealer is solely responsible for all salaries and other
compensation of all Dealer's employees.
12.2 NO FRANCHISE RELATIONSHIP. Dealer acknowledges that SCTN or SCM
have not required Dealer to pay any franchise fee or other payment as a
condition of this Agreement. Dealer represents and warrants to SCTN and
SCM that Dealer does not and shall not claim itself to be a franchisee of
SCTN and SCM, either in relation to this Dealer Programming Agreement, or
for any purpose, under any Law.
13. LIMITATION OF LIABILITY
13.1 Except as provided in Section 11, upon termination for any reason
set forth herein, SCTN or SCM shall have no liability or obligation to
Dealer whatsoever. For example and not by limitation, in any such event
Dealer shall have no right to require SCTN or SCM to continue to allow
Dealer to act as an Authorized Dealer to solicit Orders on behalf of SCTN
or SCM, and Dealer shall not be entitled to any further Commissions with
respect to prior or future sales. Dealer agrees that upon expiration or in
the event of termination of this Agreement for any reason, no amounts spent
in its fulfillment will be recoverable from SCTN or SCM by the Dealer.
13.2 In no event shall SCTN or SCM be liable for any exemplary,
special, incidental or consequential damages to Dealer (including without
limitation, any payment for lost business, future profits, loss of
goodwill, reimbursement for expenditures or investments made or commitments
entered into, creation or clientele, advertising costs, termination of
employees or employees salaries, overhead or facilities incurred or
acquired based upon the business derived or anticipated under this
Agreement), whether foreseeable or not, claims under Dealer termination,
protection, non-renewal or similar laws, for any Cause whatsoever whether
or not caused by SCTN or SCM negligence, gross negligence or willful
Misconduct. In no event shall any projections or forecasts by SCM be
binding as commitments or promises.
13.3 PAYMENT, FORFEITURE AND CANCELLATION. Upon Expiration or
termination of this Agreement for any reason, all sums due SCTN or SCM by
Dealer shall be paid within five (5) days after the day oil which Dealer
receives written notice thereof.
13.4 AUTHORIZED DEALER STATUS. Upon expiration or termination of this
Agreement for any reason, Dealer shall immediately cease to solicit and
take Orders for Programming, and shall immediately cease to represent that
it is an Authorized Dealer or an authorized commissioned representative of
SCTN and/or SCM.
12.5 SURVIVAL OF TERMS. The rights and obligations of the parties
which would logically be expected to survive expiration or termination,
shall survive expiration or termination of this Agreement.
14. INDEMNIFICATION
14.1 Dealer shall indemnify, defend and hold SCTN and/or SCM, and its
and their respective officers, directors, employees, agents and
shareholders, and its and their respective assigns, heirs, successors and
legal representatives harmless from and against, any and all costs, losses,
liabilities, damages, lawsuits judgments, claims, actions, penalties, fines
and expenses (including, without limitation, interest, penalties,
reasonable legal fees and all monies paid in the investigation, defense or
settlement of any or all. of the foregoing "Claims") that arise out of, or
are incurred in connection with: (i) Dealer's performance or failure of
performance under this Agreement and any direct or indirect results
thereof, (ii) Dealer's acts or omissions, lawful or unlawful, (or those of
any of Dealer's employees or agents, whether or not such acts are within
the scope of employment of such employees or agents) relating to the sale,
marketing, advertisement or promotion of Programming and Star Choice DTH
Receivers and equipment; (iii) breach of any of Dealer's representations or
warranties herein; (iv) all purchases,
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contracts, debts and/or alleged violation of, any applicable laws, statute,
ordinance, governmental administrative order. rule or regulation; (v) the
failure of Dealer to comply with any provision of this agreement; (vi)
failure to collect adequate taxes and remit same to SCTN and/or SCM as
required herein; or, (vii) brought by Dealer's employees or agents for
compensation and/or damages arising out of the expiration or termination of
this Agreement.
15. MISCELLANEOUS
15.1 TAXES, FEES, ETC. Dealer, at its expense, shall pay and
discharge all license fees business, use sales, gross receipts, income,
property, federal, provincial or other similar or different taxes or
assessments which may be charged or levied upon Dealer by reason of
anything performed under this Agreement.
15.2 SUCCESSOR INTEREST; NO ASSIGNMENT BY DEALER. This Agreement is
binding upon the heirs. legal representatives, successors and assigns of
SCTN and Dealer. SCTN may assign this Agreement in whole or in part at any
time without the consent of Dealer. This Agreement shall not be assigned
by Dealer. Any merger, reorganization or consolidation of Dealer shall be
deemed an assignment. If any person not a substantial shareholder of
Dealer (less than a 25% interest) as of the date of this Agreement becomes
a substantial shareholder of Dealer (greater than a 25% interest), that
shall be Considered an impermissible assignment.
15.3 CHOICE OF LAW AND EXCLUSIVE JURISDICTION.
15.3.1 The relationship between the parties including all
disputes and claims, whether arising in contract, tort, or under
statute, shall be governed by and construed in accordance with the
laws of the Province of New Brunswick and Canada without giving any
effect to its conflict of law provisions.
15.3.2 Any and all disputes arising out of, or in connection
with, the interpretation, performance or the nonperformance of this
Agreement or any and all disputes arising out of, or in connection
with, transactions in any way related to this Agreement and/or the
relationship between the parties (including but not limited to the
termination of this Agreement or the relationship and Dealer's rights,
thereunder or disputes under rights granted pursuant to statutes or
common law, including those in the province in which Dealer is
located) shall be litigated solely and exclusively before the Court of
Queen's Bench of New Brunswick. The parties consent to the in
personal jurisdiction of said court for the purposes of any such
litigation,
and waive, fully and completely, any right to dismiss and/or transfer
any action pursuant to the New Brunswick's Court of Queen's Bench
Rules of Court (or any successor statute).
15.4 SEVERABILITY. The parties agree that each provision of this
Agreement shall be construed as separable and divisible from every other
provision and that the enforceability of any one provision shall not limit
the enforceability, in whole or in part, of any other provision hereof. In
the event that a court of Competent jurisdiction determines that a
restriction contained in this Agreement shall be unenforceable because of
the extent of time or geography, such restriction shall be deemed amended
to conform to such extent of time and/or geography as such court shall deem
reasonable.
15.5 WAIVER. The failure of any party to insist upon strict
performance of any provision of this AP Agreement shall not be construed as
a waiver of any subsequent breach of the same or similar nature. All
rights and remedies reserved to either party shall be cumulative and shall
not be in limitation of any other right or remedy which such party may have
at law or in equity.
15.6 Entire Agreement.
9
15.6.1 This Agreement sets forth the entire, final and
complete understanding between the parties hereto relevant to the
subject matter of this Agreement, and it supersedes and replaces at I
previous understandings or agreements, written, oral, or implied,
relevant to the subject matter of this Agreement made or existing
before the date of this Agreement. Except as expressly provided by
this Agreement, no waiver or modification of any of the terms or
conditions of this Agreement shall be effective unless in writing and
signed by both parties.
15.6.2 The headings in this Agreement will not be used to
interpret or construe its provisions.
15.6.3 Nothing in this Agreement shall be construed to require
commission of any act contrary to law, and wherever there is any
conflict between any provision of this Agreement and any law, such law
shall prevail; provided, however, that in such event, the affected
provisions of this Agreement shall be modified to the minimum extent
necessary to permit compliance with such law and all other provisions
shall continue in full force and effect.
15.6.4 By executing this Agreement, the parties indicate their
complete agreement to all matters set forth herein.
15.7 COMPLIANCE WITH LAW. The parties shall comply with, and agree
that this Agreement is subject to, all applicable federal, provincial and
local laws, rules and regulations, and all amendments thereto, now enacted
or hereafter promulgated in force during the term of this Agreement.
15.8 FORCE MAJEURE. Notwithstanding anything to the contrary in this
Agreement, neither party shall be liable to the other for failure to
fulfill its obligations hereunder if such failure is caused by or arises
out of an act of force majeure including acts of God, war, riot, natural
disaster, technical failure (including the failure of all or part of the
domestic communications satellite, or transponders on which the Programming
is delivered to Subscribers, or of the related unlinking or other
equipment) or any other reason beyond the reasonable control of the party
whose performance is prevented during the period of such occurrence.
15.9 CONFIDENTIALITY. At all times during the Term of this Agreement
and for a period of three (3) years thereafter, Dealer and its employees
will maintain, in confidence, the terms and provisions of this Agreement,
as well as all data, summaries, reports or information of all kinds,
whether oral or written, acquired, devised or developed in any manner from
SCTN and/or SCM personnel or files, or as a direct or indirect result of
Dealer's actions or performance under this Agreement, and Dealer represents
that it has not and will not reveal the same to any persons not employed by
the Dealer, except: (i) at the written direction of SCTN and/or SCM; (ii)
to the extent necessary to comply with law, the valid order of a court of
competent jurisdiction or the valid order or requirement of a governmental
agency or any successor agency thereto, in which event Dealer shall notify
SCTN and/or SCM in advance, prior to making any disclosure, and shall seek
confidential treatment of such information; (iii) as part of its normal
reporting or review procedure to its parent company, its auditors and its
legal counsel, provided such parent company, auditors and legal counsel
agree to be bound by the provisions of this Section 15.9; or (iv) to the
extent necessary to permit the performance of obligations under this
Agreement.
Dealer acknowledges and agrees that any and all Subscriber names and
information ("Subscriber Information") provided to Dealer by SCTN or SCM in
any form or through any means, or which Dealer obtains as a result of its
actions in performance of this Agreement, are as between Dealer and SCTN
proprietary to SCTN, and shall be treated confidentially by Dealer. During
the term of this Agreement and at all times thereafter, Dealer agrees that
it will treat all Subscriber Information as strictly confidential, and
shall not disclose any Subscriber Information or use, or permit any others
to use, any Subscriber Information, except in accordance with a limited
purpose specifically permitted under this Agreement. By example, but not
by way limitations Dealer shall not use any Subscriber Information for
10
the purpose of soliciting, or to permit any others to solicit, Subscribers
to subscribe to any other programming services, and Dealer shall under no
circumstance directly or indirectly reveal any Subscriber Information to
any third party for any reason without the express prior written consent of
SCTN and/or SCM, which SCTN and/or SCM may withhold in its sole and
absolute discretion.
Dealer agrees that if it breaches the obligation in Section 15.9, it
will result in the substantial likelihood (if irreparable harm and injury
to SCTN for which monetary damages alone would be an inadequate remedy, and
which damages are difficult to accurately measure. Accordingly, Dealer
agrees that SCTN shall have the right, in addition to any other remedies
available, to obtain immediate injunctive relief as well as other equitable
relief allowed by the federal and provincial courts. The foregoing remedy
of injunctive relief is agreed to without prejudice to SCTN to exercise any
other rights and remedies it might have, including without limitation, the
right to terminate this Agreement and seek damages, or other legal or
equitable relief.
15.10 REMEDIES CUMULATIVE. It is agreed that the rights and
remedies herein provided in case of default or breach by Dealer of this
Agreement are cumulative and shall not affect in any manner any other
remedies that SCTN may have by reason of such default or breach by Dealer.
The exercise of any right or remedy herein provided shall be without
prejudice to the right to exercise any other right or remedy provided
herein, at law, or in equity.
15.11 LEGAL COSTS. The losing party in any litigation or
arbitration shall pay all costs of the prevailing party in addition to its
own, and in addition to any other relief to which the prevailing party may
be entitled.
16. GENERAL PROVISIONS. The terms and conditions attached as Exhibits A,
B and C are fully incorporated into this Agreement.
By signing below, Dealer hereby indicates its acceptance of the terms of,
and agreement to, this Agreement.
Approved by:
Star Choice Television Dealer:
Network Incorporated
By: /s/ By: /s/
---------------------------- ----------------------------
Title: Vice President Title: President
------------------------- -------------------------
Date: 16 AUG 97 Date: 23 JUN 97
------------------------- -------------------------
11
EXHIBIT A
AUTHORIZED PREMISES
1. 00 Xxxxxxxx Xx.
Xxxxxxx B.C.
2. 00 0000-000xx Xxxxxx
Xxxxxxxxxx X.X.
3. 00-00 000xx Xxx
Xxxxx Xxxxxx
Alisemza
0.#00-0000 Xxxxxxxxx Xx
Karloops B.C
12
EXHIBIT B
TRADEMARK LICENSE AGREEMENT
THIS TRADEMARK LICENSE AGREEMENT (the "Agreement") is made and entered
into as of the 24 day of June 1997 by and between Star Choice Television
Network Incorporated ("SCTN") with a place of business 0000 Xxxxx 000
Xxxxxxx, Xxxxxxx, Xxx Xxxxxxxxx X0X 0X0 and WestCoast Wireless Cable Ltd.,
with its principal place of business at #00, 0000-000 Xx. Xxxxxxxxxx, XX
X0X 0X0 ("Dealer").
A. SCTN conducts business in worldwide locations as, among other
things, a distributor of direct broadcast satellite-delivered, multi-channel,
digital audio, video and data services ("Programming") to subscribers; and
B. Dealer conducts business as, among other things, a retailer of
satellite television products and services to subscribers; and
C. Dealer desires to be permitted to use certain Star Choice
trademarks, service marks and trade names (the "Trademarks") as SCTN and/or
SCM, in its sole discretion, may authorize, from time to time, under a
non-exclusive license, in order to solicit orders for Star Choice Programming.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. SCTN hereby grants to Dealer a non-exclusive, non-transferable.
revocable license (the "License") to use the Trademarks and such other
trademarks as SCTN or SCM may from time to time expressly in writing permit
Dealer to use during the term of this Agreement and no other term or
license whatsoever, in its local advertising and promotional materials and
at its business locations. No such materials shall indicate that any
agreement of agency, partnership, joint venture, franchise or of exclusive
or non-exclusive Dealer exists between Dealer and SCTN or SCM, unless SCTN
or SCM and Dealer enter into a separate written agreement permitting Dealer
to do so. Notwithstanding the above, Dealer shall provide to SCTN or SCM,
at least thirty (30) days prior to first use, an example of any advertising
or promotional materials in which Dealer intends to use any Trademarks, and
any such other trademarks, which use has not, within the past twelve
months, been approved by SCTN or SCM in exactly the form intended for use.
SCTN or SCM may reject and prohibit Dealer from using such materials, for
any reason or reasons in its sole discretion. If Dealer is required to,
but fails to provide SCTN or SCM with proposed advertising or promotional
materials at least thirty (30) days prior to first use, SCTN or SCM shall
have just cause to immediately terminate the License by providing written
notice to Dealer to that effect. This Agreement is not intended, nor shall
it be construed, as creating any obligation on the part of SCTN or SCM to
enter into any such agreement with Dealer. Further, this Agreement is not
intended, nor shall it be construed, as providing any rights to Dealer to
purchase or sell products or programming manufactured and/or distributed by
SCTN or SCM. Dealer expressly recognizes and agrees that any goodwill now
existing or hereafter created through any sales by Dealer of products or
programming manufactured and/or distributed by SCTN or SCM, shall inure to
SCTN's or SCM's sole benefit. This License shall be effective until
terminated by either party in accordance with the terms of this Agreement,
or until termination of the Authorized Dealer Hardware Agreement between
SCM or its Authorized Distributor and Dealer, or until termination of the
Dealer Programming Agreement between SCTN and Dealer.
2. The License granted by SCTN is granted to Dealer only. Dealer
has no authority to transfer or grant any sublicense to any other entity or
individual for any reason, and if Dealer does so, such action shall
terminate the License granted herein, at SCTN's option, at any time
thereafter. Dealer shall immediately cease using Trademarks upon
termination or expiration of this Agreement for any reason. Upon
expiration or termination of this Agreement, at SCTN's option Dealer shall
immediately destroy or deliver to SCTN or SCM any and all advertising and
promotional materials in Dealer's possession with Trademarks on them. If
SCTN or SCM requests destruction of advertising and
13
promotional materials, Dealer shall promptly execute an affidavit
representing at a minimum that such materials were destroyed, and the date
and means of destruction.
3. Dealer expressly recognizes and acknowledges that the License, as
well as any past use of the Trademarks in any manner whatsoever by Dealer
(including but not limited to use on signs, business card or in
advertisements), shall not confer upon Dealer any proprietary rights or
interest to any Trademarks including, but not limited to any existing or
future goodwill in the Trademarks. All goodwill in the Trademarks shall
inure to SCTN's or SCM's sole benefit. Further, Dealer waives any and all
past, present, or future claims it has or might have to the Trademarks, and
acknowledges that as between SCTN and Dealer, SCTN has the exclusive rights
to own and use the Trademarks, and that SCTN retains full ownership of the
Trademarks notwithstanding the License granted herein. While Dealer has no
right or authority to do so, in the event that Dealer has previously, or in
the future reserves, files, or registers any of the Trademarks of SCTN,
Dealer agrees to notify SCTN immediately, and immediately upon request of
SCTN. to assign any and all interest to SCTN that is obtained through the
reservation, filing, or registration of the Trademarks in Canada, in the
country in which Dealer is located or any foreign jurisdiction, and hereby
acknowledges that any such reservation, filing, or registration of the
Trademarks, whenever occurring, shall be on behalf of and for the sole
benefit of SCTN, and Dealer waives all claims or rights to any compensation
whatsoever therefor. Dealer's obligations in this paragraph shall survive
the expiration or termination of this Agreement.
4. Nothing in the Agreement shall be construed to bar SCTN from
protecting its right to the exclusive use (if its Trademarks against
infringement thereof by any party or parties, including Dealer, either
during the term of this Agreement or following any expiration or
termination of Dealer's right to such the Trademarks pursuant to this
Agreement. Dealer will promptly and fully advise SCTN or SCM of any use of
any xxxx that may appear to infringe the Trademarks. Dealer will also
fully cooperate with SCTN in defense and protection of the Trademarks, at
SCTN's expense. Similarly, nothing in this Agreement shall be construed to
require that SCTN take any action to protect the Trademarks in any
instance, and SCTN shall not be liable to Dealer in any manner whatsoever
for failure to take any such action.
5. This Agreement shall continue for a period of time equal to the
term of the Authorized Dealer Programming Agreement between SCTN and
Dealer, and of the Authorized Dealer Hardware Agreement between SCM or its
Authorized Distributor and Dealer, unless terminated earlier for a reason
Provided herein.
6. Any and all disputes, claims or actions that may arise under or
out of this Agreement shall be governed, interpreted and enforced in
accordance with the laws of the Province of New Brunswick, and shall
otherwise be resolved in accordance with the dispute resolution provisions
of the Authorized Dealer Programming Agreement to which this Trademark
License Agreement is attached.
7. This Agreement may be executed in two or more counterparts, each
of which shall be an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized representatives as of the day and year first above
written.
Star Choice Television Dealer
Network Incorporated
BY: /s/ By: /s/ XXXXXXX XXXXXXXX
------------------------- -------------------------
Its: Vice President Its: President
------------------------- -------------------------
Xxxxxxx Xxxxxxxx
WESTCOAST WIRELESS CABLE
14
EXHIBIT C
DEALER COMMISSION SCHEDULE
NET SUBSCRIPTIONS PER MONTH *COMMISSION RATE
--------------------------- ----------------
0 - 10 2%
11 - 20 3%
21 plus 4%
COMMISSIONS APPLIES TO TOTAL ACCUMULATED CUSTOMER BASE RETAILED.
*Independent Dealer Single Store formula. Multistore dealers will be
calculated per store.
15
