Exhibit 4.65
FORM OF AMENDED AND RESTATED
CANWEST EDITORIAL SERVICES AGREEMENT
THIS AGREEMENT is amended and restated as of the 14th day of February, 2003
BETWEEN:
CANWEST PUBLICATIONS INC., a corporation incorporated
under the federal laws of Canada ("CPI")
- and -
_______________________, a corporation incorporated under the
federal laws of Canada (the "Company")
RECITALS:
A. CPI operates CanWest Editorial Services (formerly known as
Southam Editorial Services) providing content and content enhancement
services to news media publications.
B. The Company operates certain publications to which these services
are provided and wishes to continue to receive these services.
C. The Company and CPI wish to amend and restate this agreement originally
made as of April 30, 2002 to reflect certain amendments made as of and
to take effect on February 14, 2003.
NOW THEREFORE the parties agree as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
Wherever used in this Agreement, the following words and terms will have the
meanings set out below:
"AFFILIATE" has the meaning given in the Canada Business Corporations Act, as
amended from time to time.
"AGREEMENT" means this CanWest Editorial Services Agreement, including all
Schedules attached to this Agreement, all as may be amended from time to time.
"BASIC EDITORIAL SERVICES" means the non-customized services provided by CanWest
Editorial Services, including comic pagination, stock exchange information,
sports scores, television listings and features content as more specifically
described in Schedule A.
"BUSINESS DAY" means a day other than a Saturday or Sunday, on which the
principal commercial banks in the City of Toronto are open for business during
normal banking hours.
"COMPANY PUBLICATIONS" means the newspapers and related publications published
by or on behalf of the Company as of February 14, 2003, and, for greater
certainty, shall not include any newspapers and related publications published
by or on behalf of the Company as a result of the Company amalgamating with
Osprey Media Group or any third party.
"COMPETING BUSINESS" means, with respect to CPI, any newspaper or publication
the circulation of which exceeds ten percent (10%) in any market in which CPI or
any of its Affiliates distributes a newspaper or publication (a list of such
markets is set out in Part 1 of Schedule B) and, with respect to the Company,
any newspaper or publication the circulation of which exceeds ten percent (10%)
in any market in which the Company or any of its Affiliates distributes a
newspaper or publication as of February 14, 2003 (a list of such markets is set
out in Part 2 of Schedule B).
"CONTENT" means all, or a portion of, the editorial and news content and
photographs included in the Basic Editorial Services and, where applicable,
Custom Services.
"CURRENT PRACTICES" means the practices and procedures of CPI in effect as of
February 14, 2003 in the operation of the Basic Editorial Services as such
practices may be amended by CPI from time to time.
"CUSTOM SERVICES" means those services included in the Basic Editorial Services
which are customized for Company Publications as well as additional services
which CPI may offer or Company may request from time to time.
"DISPUTE" has the meaning given it in section 4.7.
"FORCE MAJEURE" means any cause beyond the reasonable control of a Party and
affecting the ability of that Party to comply with the provisions of this
Agreement, including acts of God, strikes, lockouts or other labour or
industrial disturbances and accidents, but does not include a lack of financial
resources.
"NOTICE" has the meaning given it in section 4.10.
"NOTICE TO ARBITRATE" has the meaning given it in section 4.7.
"PARTIES" means CPI and the Company and "PARTY" means any one of them as the
context indicates.
"PERSON" means any individual, sole proprietorship, partnership, unincorporated
association, unincorporated syndicate, unincorporated organization, trust, body
corporate, Governmental Authority, and a natural person in such person's
capacity as trustee, executor, administrator or other legal representative.
"TERM" has the meaning given it in Section 3.1.
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1.2 CERTAIN RULES OF INTERPRETATION
In this Agreement and the Schedules:
(a) TIME - time is of the essence in the performance of the
Parties' respective obligations;
(b) CURRENCY - unless otherwise specified, all references to money
amounts are to Canadian currency;
(c) HEADINGS - descriptive headings of Articles and sections are
inserted solely for convenience of reference and are not
intended as complete or accurate descriptions of the content
of those Articles or sections;
(d) SINGULAR, ETC. - use of words in the singular or plural, or
with a particular gender, will not limit the scope or exclude
the application of any provision of this Agreement to that
Person or those Persons or circumstances as the context
otherwise permits;
(e) CONSENT - whenever a provision of this Agreement requires an
approval or consent by a Party to this Agreement and
notification of that approval or consent is not delivered
within the applicable time limit, then, unless otherwise
specified, the Party whose consent or approval is required
will be conclusively deemed to have withheld its approval or
consent;
(f) CALCULATION OF TIME - unless otherwise specified, time periods
within or following which any payment is to be made or act is
to be done will be calculated by excluding the day on which
the period commences and including the day on which the period
ends and by extending the period to the next Business Day
following if the last day of the period is not a Business Day;
(g) BUSINESS DAY - whenever any payment to be made or action to be
taken under this Agreement is required to be made or taken on
a day other than a Business Day, that payment will be made or
action taken on the next Business Day following that day; and
(h) INCLUSION - where the words "including" or "includes" appear
in this Agreement, they mean "including (or includes) without
limitation".
1.3 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties pertaining
to the subject matter of this Agreement and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written, of the
Parties, and there are no warranties, representations or other agreements
between the Parties in connection with the subject matter of this Agreement
except as specifically set forth in this Agreement or in those other Agreements.
No supplement, modification or waiver or termination of this Agreement will be
binding unless executed in writing by the Party to be bound thereby.
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1.4 APPLICABLE LAW AND ATTORNMENT
This Agreement will be construed in accordance with the laws of the Province of
Ontario and the laws of Canada applicable therein and will be treated, in all
respects, as an Ontario contract. Subject to section 4.7, the Parties agree to
attorn to the exclusive jurisdiction of the Courts of Ontario.
1.5 SCHEDULES
The schedules to this Agreement, as listed below, are an integral part of this
Agreement:
SCHEDULE DESCRIPTION
-------- -----------
Schedule A Basic Editorial Services
Schedule B List of CPI and Company Markets
ARTICLE 2
CANWEST EDITORIAL SERVICES
2.1 LICENCE OF EDITORIAL CONTENT
During the Term, CPI grants to each Company Publication a limited non-exclusive
right and license to receive the Basic Editorial Services and Custom Services
for the sole purpose of reproducing the Content in the print and electronic
format of the Company Publication. The Content may be edited for layout and
presentation purposes by the Company but may not be otherwise modified nor may
the Content be sublicensed or provided to any other Person including Affiliates
of the Company. If the Content provided to a Company Publication through the
Basic Editorial Services and Custom Services includes content from third party
providers pursuant to a separate license agreement between the Company and the
third party, the Company shall immediately give Notice to CPI in the event that
the license agreement expires or is terminated.
2.2 LICENCE FOR TV TIMES TRADE-XXXX
During the Term, CPI grants to each Company Publication a limited non-exclusive
right and license to use CPI's TV TIMES trade-xxxx solely in association with
the reproduction of the Content in accordance with section 2.1. The Company
shall ensure that each Company Publication: (a) does not take any action which
will adversely affect the validity of the TV TIMES trade-xxxx; and (b) meets all
specifications for the use of the TV TIMES trade-xxxx communicated to Company by
CPI from time to time.
2.3 FEES
CPI shall provide the Basic Editorial Services to the Company for the monthly
fee of _____ during the Term.
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2.4 DELIVERY OF THE BASIC EDITORIAL SERVICES
The Company shall ensure that each Company Publications maintains the
appropriate systems to enable it to receive the Basic Editorial Services in
accordance with Current Practices.
2.5 ADDITIONAL SERVICES
CPI may, from time to time, make available to the Company and Company may
request Custom Services for a fee to be negotiated by the Parties.
2.6 NO WARRANTY
The Content provided by CPI to the Company is provided "as is" and without any
representation or warranties by CPI, either express or implied. Without limiting
the generality of the foregoing, CPI does not warrant that the Content is
accurate, that it is not offensive, libelous or defamatory and that it will not
infringe any intellectual property rights of any Person.
2.7 CURRENT PRACTICES
CPI may amend any Current Practice relating to the provision of the Basic
Editorial Services from time to time upon Notice to the Company provided the
amendment to any Current Practice is of general application to a majority of the
news media publications that receive the Basic Editorial Services.
ARTICLE 3
TERM & TERMINATION
3.1 TERM
Subject to the rights of early termination set out in section 3.2, this
Agreement will commence on February 14, 2003 and continue until February 14,
2006 (the "Term").
3.2 TERMINATION
(a) Either Party may terminate this Agreement immediately without
prior Notice if the other Party institutes or consents to the
institution against it of bankruptcy, insolvency or similar
proceedings, or the other Party makes a general assignment for
the benefit of creditors, or a liquidator, trustee in
bankruptcy, receiver or receiver manager is appointed over a
substantial or material part of the other Party's assets.
(b) Either Party may terminate this Agreement immediately in the
event of a material breach by the other Party of its
obligations under this Agreement, which is not cured within
thirty (30) days of receipt of written Notice of that breach.
(c) Either party may terminate this Agreement immediately without
prior Notice in the event that the other Party or an Affiliate
of such Party acquires, merges or amalgamates with or
commences a Competing Business or enters into any news
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sharing agreement with any Person which owns or operates a
Competing Business (other than Canadian Press or any successor
to Canadian Press).
(d) CPI may terminate this Agreement at any time after February
14, 2005, upon not less than three (3) months prior Notice to
the Company in the event it determines to discontinue the
provision of the Basic Editorial Services to third parties.
3.3 OBLIGATION UPON TERMINATION
Upon expiry or termination of the Agreement for any reason, Company and Company
Publications shall immediately: (i) cease publication of the Content obtained
from the Basic Editorial Services or Custom Services; (ii) cease use of the TV
TIMES trade-xxxx and (iii) pay CPI any money owing hereunder which has accrued
as of the date of expiry or termination of this Agreement.
ARTICLE 4
GENERAL
4.1 FORCE MAJEURE
Notwithstanding any other provision of this Agreement, if by reason of Force
Majeure, CPI is unable, wholly or in part, to perform or comply with its
obligations under this Agreement, CPI will be relieved of liability and will
suffer no prejudice for failing to perform or comply or for delaying performance
or compliance during the continuance and to the extent of the inability so
caused by the Force Majeure, provided that CPI gives the Company prompt Notice
and reasonably full particulars of the event of Force Majeure. CPI:
(a) will only be relieved from performance or compliance after
receipt of Notice,
(b) will use all reasonable commercial efforts to remedy the
situation and remove, so far as possible and with reasonable
dispatch, the cause of its inability to perform or comply,
provided that there will be no obligation on it to settle
labour disputes; and
(c) will give prompt Notice to the Company of the cessation of the
event of Force Majeure.
4.2 ASSIGNMENT
(a) Except with the written consent of the other Party, which can
be arbitrarily withheld, or as provided in this Section, this
Agreement may not be assigned by either Party.
(b) This Agreement may be assigned by a Party to an Affiliate,
provided the assignor shall remain liable for all obligations
of the assignee.
(c) This Agreement may be assigned by CPI to any successor to the
business of CanWest Editorial Services upon Notice to the
Company. This Agreement may
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be assigned by Company to any purchaser of a Company
Publication upon Notice to CPI provided that if the purchaser
of the Company Publication is a competitor of CanWest or any
of its Affiliates in its newspaper operations anywhere in
Canada, CPI may terminate this Agreement.
4.3 ENUREMENT
This Agreement shall enure to the benefit of CPI and Company and their
respective successors and permitted assigns, and shall be binding upon CPI and
Company and their respective successors and assigns. Without limiting the
generality of the foregoing, this Agreement and its covenants shall survive any
amalgamation or corporate reorganization of CPI or Company, so that the
resulting entity shall benefit from and be entitled to enforce the Agreement
against the other party as if it had been an original party and signatory to
this Agreement.
4.4 ASSUMPTION OF RISK AND INDEMNITY
Each Party will, at its own expense, defend and save harmless the other Party
and its Affiliates from and against any claims, demands, actions, causes of
action, damage, loss, costs, liability or expense which may be made or brought
against the Party or which the Party may suffer or incur as a result of or in
connection with: (a) any default, breach or alleged default or breach of the
other Party's obligations and covenants under this Agreement; or (b) any act or
omission on the part of the other Party.
4.5 WAIVER
The failure of CPI or Company to insist on the strict performance of any term or
terms under this Agreement, or to act upon the breach of any term or terms of
this Agreement or to exercise any right or rights under this Agreement, shall
not operate or be construed as an acquiescence in the breach of or waiver of
such right or rights or in any manner impair the ability of CPI or Company to
enforce the right or the rights or act upon any right or rights at any
subsequent time or times.
4.6 SEVERABILITY
If any covenant, provision, term, article, section, sub-section or clause herein
is determined to be void, unenforceable or illegal, in whole or in part, it
shall not be considered to affect or impair the enforceability, legality or
validity of any other covenant, provision, term, article, section, sub-section
or clause of this Agreement and this Agreement shall be interpreted and
construed as though any such illegal, unenforceable or invalid covenant,
provision, term, article, section, sub-section or clause were omitted herefrom.
4.7 ARBITRATION
In the event of any dispute, claim, question or disagreement arising out of or
relating to this Agreement, except for any claim in respect of the termination
of this Agreement for failure to agree on a fee pursuant to section 2.3
("Dispute"), the Parties shall use all reasonable efforts to settle such Dispute
within a period of thirty (30) days of one Party giving Notice of the Dispute to
the other. If settlement cannot be reached within thirty (30) days, or such
longer period as the
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Parties may agree, either Party may provide written notice to the other ("Notice
to Arbitrate") and such Dispute shall be finally determined by arbitration from
which there shall be no appeal to be held in accordance with the provisions of
the Ontario Arbitration Act, 1991. The arbitration shall be heard by a single
arbitrator agreed to by the Parties and failing such agreement either Party may
apply to a judge of the Ontario Superior Court to appoint the arbitrator on
behalf of the Parties. The Notice to Arbitrate shall set out a concise
description of the Dispute to be submitted to arbitration and shall be delivered
to the other Party. The arbitration, including the rendering of the award or
decision, shall take place in Xxxxxxx, Xxxxxxx, which shall be the seat of the
proceedings. The language to be used in the arbitration shall be English.
Nothing in this section precludes a Party from seeking interim relief by way of
an injunction (mandatory or otherwise) or other interim equitable relief in the
Ontario Superior Court in connection with this Agreement.
4.8 FURTHER ASSURANCES
Each of the Parties will promptly make, do, execute or deliver or cause to be
made, done, executed or delivered, all such further acts and things as the other
Party may reasonably require from time to time for the purpose of giving effect
to this Agreement.
4.9 CONFIDENTIALITY
Each Party covenants to keep confidential all information concerning the
business and affairs of each other Party, which information is not otherwise
available to the public and which the first Party is not required by law to
disclose. In the event that any Party is required by law to disclose any
non-public information of another Party, the first Party will promptly: (i)
provide Notice of that requirement to the other Party; (ii) assist the other
Party at that Party's request in obtaining an order protecting the confidence of
that information; and (iii) only provide that part of the information as its
counsel determines is necessary to comply with that requirement. This section
4.9 will survive any termination of this Agreement.
4.10 NOTICES
Any notice or other writing required or permitted to be given under this
Agreement or for the purposes of this Agreement (a "Notice") will be in writing
and will be sufficiently given if delivered, or if sent by pre-paid courier or
if transmitted by facsimile, e-mail or other form of recorded communication
tested prior to transmission to such Party:
(a) in the case of a Notice to the Company:
00 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxxx Xxxxxx
cc. Xxxx Xxxxxx
Facsimile: (000) 000-0000
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(b) in the case of a Notice to CPI at:
00 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx Xxxx
Facsimile: (000) 000-0000
E-mail: xxxxx@xxx.xxxxxxx.xx
and to CanWest Global Communications Corp. at:
00xx Xxxx, Xxxxxxx-Xxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx X0X 0X0
Attention: Xxxxxxx Xxxxxxx, Vice-President and General Counsel
Facsimile: (000) 000-0000
E-mail: xxxxxxxx@xxxxxxx.xxx
or at such other address as the Party to whom such Notice is to be given shall
have last notified the Party giving the same in the manner provided in this
section 4.10. Any Notice delivered to the Party to whom it is addressed as
provided above will be deemed to have been given and received on the day it is
so delivered at that address, provided that if that day is not a Business Day
then the Notice shall be deemed to have been given and received on the next
Business Day. Any Notice sent by prepaid courier will be deemed to have been
given and received on the second Business Day following the date of its sending.
Any Notice transmitted by facsimile, e-mail or other form of recorded
communication will be deemed given and received on the first Business Day after
its transmission.
4.11 RELATIONSHIP OF PARTIES
This Agreement is not intended to and will not constitute, create, give effect
or otherwise recognize a joint venture, partnership or formal business entity of
any kind.
4.12 SURVIVAL
Sections 1.3, 1.4, 2.6, 3.3, 4.4, 4.9 and 4.12 shall survive termination or
expiration of this Agreement for any reason.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF the Parties have executed this CanWest Editorial Services
Agreement as of the date first written above.
CANWEST PUBLICATIONS INC.
By:_______________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Director
By:_______________________________________
Name: Xxxxxx X. Xxxxxx
Title: Director
__________________________________________
By:_______________________________________
Name:
Title:
By:_______________________________________
Name:
Title:
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SCHEDULE A
BASIC EDITORIAL SERVICES
Comic Pagination
- daily gathering and formatting of a comics and puzzles page
Stock Exchange Information
- daily stock listings
- daily summaries of key indices, most active stock by volume, top 10 gainers
and losers
- daily comprehensive list of bonds
- two weekly mutual fund charts
Deadline Sports
- daily modules for standings in the National Hockey League, National
Basketball Association, Major League Baseball, Canadian Football League and
National Football League
- daily game and box scores
- weekly team by team player statistics
- weekly summary of pro golf and auto racing
TV Times
- weekly editorial package and cover page
Features
- compiling stories and photographs in specific subject categories
including: personal finance, automobiles, travel, homes, computers, heath and
fitness, family, fashion, food and workplace
Weather
- daily customized weather package
SCHEDULE B
CPI MARKETS
The following markets are as defined by the Audit Bureau of Circulations:
Toronto Census Metropolitan Area;
Newspaper Designated Market for the Ottawa Citizen;
City Zone for The Vancouver Sun and The Province;
Newspaper Designated Market for the Victoria Times-Colonist;
City Zone for The Montreal Gazette;
City Zone for The Xxxxxx Leader Post;
City Zone for The Saskatoon Star Phoenix;
City Zone for the Calgary Herald;
City Zone for the Edmonton Journal; and
City Zone for the Windsor Star.
COMPANY MARKETS
[DRAFT NOTE: TO BE COMPLETED]
