Exhibit 10.5
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (the "AGREEMENT") is made and effective
as of March _4_, 2002 (the "EFFECTIVE DATE"), by and between The Players Network
("NETWORK"), a Nevada corporation, located at 0000 Xxxxxxx Xxxxxx, Xxx Xxxxx,
Xxxxxx 00000, and Xxxxx Xxxxxx Hotel Casino ("CUSTOMER"), a New Jersey
corporation, with corporate offices located at Xxxxx Xxxxxx xxx Xxxxxxxxxx
Xxxxxxxxx, Xxxxxxxx Xxxx, Xxx Xxxxxx 00000.
RECITALS
WHEREAS, Network owns and produces in-house gaming television
programming and can develop an online streaming media marketing strategy for
Customer;
WHEREAS, Customer and Network desire to have Customer distribute
Network's program content (including a customized in-house gaming channel) (i)
on a designated marketing channel on a privately operated cable television
distribution system (the "DIGITAL PLAYBACK SYSTEM") within its hotel through
various vertical marketing vehicles, including, without limitation, Internet
webcasts, and other private and public interactive mediums, all pursuant to the
terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein, and
for other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, Network and Customer agree as follows:
AGREEMENT
1. TERM & TERMINATION
a. TERM.
Unless otherwise terminated as provided herein, the initial
term of this Agreement (the "INITIAL TERM") shall commence on
the Effective Date, and shall continue for twenty-four (24)
consecutive months thereafter. Network and Customer shall meet
in good faith at least ninety (90) days prior to the
expiration of the Initial Term to discuss the terms and
conditions for renewal of this Agreement. Notwithstanding the
foregoing, after expiration of the Initial Term, this
Agreement shall automatically renew for successive twelve
month periods (collectively, the "RENEWAL TERM," and together
with the Initial Term, the "TERM") unless either party elects
to allow the Agreement to expire by delivering a written
notice of such election no fewer than thirty (30) days prior
to the date the Term is scheduled to expire.
b. EARLY TERMINATION.
This Agreement may be terminated upon delivery of written
notice of termination effective immediately:
1) If Customer does not find Network's programming to
meet reasonable marketing goals achieved as a direct
result of promotions conducted by both parties as
outlined in Section 5(a)
2) By either party, if the other party has failed to
make a payment required hereunder within fifteen (15)
days after the other party's receipt of written
notice of its failure to pay;
3) By either party, if the other party breaches a
material provision of this Agreement which breach has
not been cured within thirty (30) days after the
other party's written notice of its breach; or
4) By Customer, if Customer reasonably determines that
continued association with Network may jeopardize any
gaming license held or pursued by Customer or any of
its subsidiaries or affiliates.
A termination pursuant to this Section 1(b) shall not impair
either party's other rights and remedies under law or equity.
2. PROGRAMMING PACKAGES.
a. GENERAL DESCRIPTION; CONTENT; COMMERCIAL ADVERTISING.
1) Network shall provide Customer with digital content
management services and the technical equipment
described in this Section 2 that is necessary to
broadcast a Programming Package at Customer's
location in accordance with the terms and conditions
of this Section 2. For purposes of this Agreement,
(A) "PROGRAMMING PACKAGE" means a schedule of Network
Programs specifically designed for Customer's
location to be broadcast at such times and
frequencies as proposed by Network and reasonably
agreed to by Customer on Customer's Digital Playback
System in the guest rooms of Customer's location and
(B) "NETWORK PROGRAMS" means the entire library of
completed television shows, feature segments and
promotional videos developed and owned by Network,
including, without limitation, Video Segments,
Feature Segments and any other new programming
developed and owned by Network during the Term but
excluding customized programming developed by Network
for Network's other customers (whether or not Network
holds ownership or license rights to such
programming).
2) Network shall inform Customer of new programming
under development by Network (except for customized
programming developed by Network for Network's other
customers) subject to Network's confidentiality
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standards and procedures.
3) Network shall use good faith efforts to consult with
Customer regarding Customer's programming requests
and to accommodate Customer's reasonable requests
within Customer's and Network's standard programming
format, such as by making minor alterations to
graphics, charts, rules and voiceovers or minor edits
to exclude specific programming content that Customer
reasonably believes to be objectionable in light of
its business and operations; PROVIDED that (A)
nothing contained herein shall be construed to
require Network to reformat or provide substantial
alterations or edits to any Network Program and (B)
if the parties cannot agree on appropriate
alterations or edits to a Network Program, Network
shall, upon Customer's request, remove such Network
Program from the Programming Package.
4) As an option which can be executed at any time during
the term of this Agreement, Network can produce once
per calendar month for broadcast along with the
Programming Package a master calendar of events that
promotes Customer's property. The format and contents
for such calendars are described in further detail in
EXHIBIT A. Customer shall develop and submit the
contents for such calendars including, but not
limited to, music, photos, etc. and instructions for
cross-promotions in writing to Network no less than
three business days prior to Customer's desired date
for broadcast thereof and will use good faith efforts
to accommodate such other changes as Customer may
request.
b. EQUIPMENT AND TECHNICAL INSTALLATION & MAINTENANCE SERVICES
1) Network shall install digital playback equipment
compatible with Customer's Digital Playback System in
order to provide an advanced marketing vehicle
consisting of customized Customer programming and/or
any future services to be provided to Customer by the
Network. All equipment provided by Network shall be
owned (or leased) and operated by Network and shall
not be considered property of Customer.
2) Network shall maintain and service its equipment at
no additional expense to Customer. Network shall
install a paging system or provide a similar device
that notifies Network of any equipment failure
resulting in channel downtime reasonably promptly
after its occurrence. Network shall use commercially
reasonable efforts to repair or replace any
non-operational equipment such that broadcasts resume
within two business days of the commencement of the
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downtime. In the event of downtime, the Programming
Package Fee shall be prorated (on an day-by-day
basis) for consecutive hours of downtime above the
initial two business day period.
3) Customer shall provide an area for the equipment to
be located, one dedicated telephone line and one
dedicated landline connection. Such equipment and
lines shall be located in an area that is not
accessible to guests but allows for reasonable access
by Network to perform its duties hereunder.
4) Customer shall provide Network and its appointed
representatives with necessary access to areas
wherein the equipment shall be located and Network
shall have the right and authority to enter the
premises of Customer at any time with appropriate
verbal notice and subject to Customer's reasonable
security clearance procedures to install, update or
repair programming and maintain the equipment.
5) Customer shall designate, or cause its in-house cable
and Internet system providers to designate, a channel
(the "DEDICATED CHANNEL") (which shall be the lowest
channel position available) on the Digital Playback
System for continuous, 24-hour broadcast of the
Programming Package. Customer may request that the
Programming Package be provided on additional
Dedicated Channels (which need not be in the lowest
channel position available) by delivering a written
request to Network accompanied by payment of a
one-time equipment upgrade fee in the amount of Four
Thousand Dollars ($4,000) for each additional
Dedicated Channel. Network shall maintain equipment
and scheduling of programming related to up to one
additional Dedicated Channel at its cost and expense.
6) If at any time Customer has any interactive or
on-demand program suppliers ("OTHER PROGRAM
SUPPLIERS") and Customer desires for Network's
Programming Package to be interactive and/or
on-demand, Customer shall be solely responsible for
paying any and all fees or costs associated with
making arrangements for such interactive or on-demand
programming charged by such Other Program Suppliers.
Network shall cooperate with Customer and Other
System Providers in good faith (but at no additional
cost to Network) to make any necessary minor
technical adjustments and adaptations to Network's
Programming Package and/or equipment as necessary to
comply with Other System Providers' reasonable
technical platform and broadcast standards.
Network shall be provided with written reports on not
less than a monthly basis detailing the interactive
usage of the Customized Programming during the Term
and furthermore shall have the right to audit such
reports on not less than an annual basis (which audit
rights shall survive the expiration or termination of
this Agreement). Network shall receive on-screen
credit and co-branding of such programming that
reasonably describes Network's role in providing the
services hereunder.
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7) In the event Other Programming Suppliers offer
Internet access on the same platform where Network's
programming is being broadcast, customer will request
that Other Programming Supplier provide Network with
a link to its own website, xxx.XxxxxxxXxxxxxx.xxx,
within reasonable guidelines of the system's
capability. Such link shall be located in a prominent
area on the interactive pages where Network's
programming is being offered.
8) Prior to supplying its programming hereunder, Network
shall be entitled to receive written agreement(s)
reasonably satisfactory in form and substance to
Network assuring that Other Program Suppliers will
have no right or interest in Network's programming,
or any ability to manipulate or otherwise use,
Network's content except to broadcast such content
into guest rooms on the Dedicated Channel(s).
c. LICENSES AND BROADCAST RIGHTS.
1) Network hereby grants Customer a personal,
non-transferable, non-exclusive, royalty-free license
during the Term to broadcast the Programming Package
at the Designated Location designated therefor and
over the Customer's Website. Customer acknowledges
and agrees that, except for the license granted
pursuant to the foregoing sentence, it owns no right,
title or interest in or to the Programming Package or
its contents other than the Customized Video Segments
and provided in Section 3.
2) Customer acknowledges that Network may broadcast the
Programming Package, including all Customized
Programming, and any portion thereof over Network's
website, XXX.XXXXXXXXXXXXXX.XXX, and all of Network's
existing and future national and international
broadband, cable and wireless distribution channels.
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3. CUSTOMIZED VIDEO PRODUCTION.
a. GENERAL DESCRIPTION.
1) Network shall develop and produce for Customer an
aggregate of thirty (30) minutes of final,
customized, talent-driven segments in an "Electric
News Gathering" or "ENG"-style (collectively,
"CUSTOMIZED VIDEO SEGMENTS") in accordance with the
Section 2(a) and EXHIBIT B attached hereto. Customer
can use the thirty (30) minutes in any way they wish.
Customer shall own the Customized Video Segments and
raw footage and B-roll used to develop the Customized
Video Segments, subject to the licenses granted to
Network hereunder.
2) Prior to production of the Customized Video Segments,
Network and Customer shall designate appropriate
members of their staff to hold a series of creative
meetings to establish the subject matter and creative
approach for the segments and the specific number of
segments to be shot.
3) Network agrees that the Customized Video Segments
shall be in objectively good taste and shall not
contain any content that is offensive (in light of
Customer's industry), obscene or violent. Customer
reserves the right to request changes to a Customized
Video Segment to ensure the accuracy of the
information contained therein so long as such changes
do not require more than two (2) hours of editing.
Customer shall pay additional charges in accordance
with EXHIBIT C after the second hour of editing.
Network shall use good faith efforts to inform
Customer of the expected changes, if any, associated
with changes requested by Customer.
4) Any Customer production request that requires
scripting a specific story to be shot on-premise and
edited into a specific Customer program feature (a
"FEATURE SEGMENT") shall be submitted to Network in
writing no less than fourteen (14) business days
prior to the date and time that filming is requested
to commence. Customer reserves the right to approve
script and/or story angle for Feature Segments to
ensure the accuracy of the information prior to
shooting. Prior to shooting, Customer must sign off
on both the script (when applicable) and creative
approach. When production on a Feature Segment has
been completed, Network shall pay the costs
associated with any minor changes requested by
Customer that require up to two (2) hours of editing.
If Customer requires changes to a Feature Segment
that requires editing time in excess of two (2)
hours, Customer shall pay additional charges in
accordance with EXHIBIT C. Network shall use good
faith efforts to inform Customer of the expected
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charges, if any, associated with the changes
requested by Customer.
5) Customer shall appoint one or two personnel to act as
liaisons with Network's production team during the
production of the Customized Video Segments and to
assist Network with the coordination of customized
production.
6) Customer shall provide (or cause to be provided to)
Network at Customer's sole expense all publicity and
production clearances necessary or reasonably
requested by Network for filming on Customer's
premises. Customer shall be solely responsible for
obtaining any and all consents and approvals
(including as related to privacy, image, personality,
recording or broadcast rights) from talent hired by
Customer and employees and guests of Customer
necessary or reasonably requested by Network in
connection with the filming, production or broadcast
of the Customized Video Segments.
7) Customer shall notify and coordinate with security
for Network production crews when and where deemed
appropriate by Network while filming on Customer's
premises.
8) For production occurring at any location owned or
controlled by the Customer, Network shall provide
insurance of the type and with limits that are
reasonably appropriate to the scope of the
production. Customer shall be named as an additional
insured thereon.
b. PRODUCTION PERSONNEL.
1) Network's standard on-site crew shall consist of up
to four crew members (a Network producer and an
on-camera reporter, when and if deemed appropriate by
Network for the specific segment). Network shall use
good faith efforts to identify at the time of the
production request if additional on-site crew members
or special production equipment and post-production
processes will be necessary for more sophisticated
filming and productions, the assignment of which
shall be subject to Customer's consent. Customer also
may request additional on-site crew in its
discretion. Customer shall bear all costs and
expenses associated with additional on-site crew in
accordance with Exhibit C.
2) Customer shall provide rooms, food and beverages for
Network's on-site production crews while filming at
Customer's property for production work and/or while
Network conducts business in Atlantic City. These
provisions will include reasonable use of all public
restaurants at Customer's property.
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3) If Customer is a party to any collective bargaining
agreements that require the utilization of union
personnel in connection with on-site filming or
production, Customer shall be responsible for
supplying such personnel and incurring the
incremental cost related to their compensation.
c. ADDITIONAL SERVICES.
1) Where production services are being performed on
already completed Customized Video Segments (such as
edits to graphics, music, writing and/or voiceover
services), Customer shall only be charged for
re-purposing and updating of such segments in
accordance with EXHIBIT C.
2) Upon Customer's written request, Network shall
provide Customized Production in excess of twenty
(20) minutes; PROVIDED that Customer pays Network (A)
in advance the Supplemental Video Production Fee and
(B) upon receipt of an invoice therefor, all other
costs and expenses associated therewith in accordance
with EXHIBIT C.
3) Customer may request on short notice that Network
produce, and Network shall use its good faith efforts
(which is expressly subject to the availability of
Network's local on-site ENG crew) to produce, a
segment involving a special story where the standard
advance notice and planning may not be possible, such
as jackpot winners, special appearances or
spontaneous events. Customer shall pay all costs and
expenses associated with accommodating such special
production in accordance with EXHIBIT C.
d. LICENSES; OTHER.
1) All techniques, processes, know-how, show-how,
patents and other proprietary information developed
by Network during its performance of any of the
services under this Agreement, including, without
limitation, the development and production of the
Customized Video Segments, shall be and at all times
remain the sole and exclusive property of Network,
and Customer shall hold no right, title or interest
with respect thereto.
2) Network shall digitally encode all of the Customized
Video Segments to enable streaming the content over
the Customer Websites. Upon Customer's written
permission, Customer shall grant to Network a
worldwide, perpetual, non-exclusive, royalty-free
license during and after expiration of the Term to
rebroadcast the Customized Video Segments over
Network's website, XXX.XXXXXXXXXXXXXX.XXX ("NETWORK'S
WEBSITE"), and all of Network's existing and future
co-branded broadband and cable distribution channels
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and to use and show the Customized Video Segments to
third parties as samples of Network's work.
3) Network shall create and maintain a separate video
library, which library shall include all Customized
Video Segments, "B-roll," news stories, promotions,
Feature Segments and graphics created for Customer.
Network hereby grants to Customer a personal,
non-transferable, non-exclusive, royalty-free license
to use for promotional purposes only at such
Designated Location (but not to duplicate) during the
Term the contents of the library and Network's
digital linear tape drives; PROVIDED that Customer
shall reimburse Network's actual duplication costs
associated with creating the library (described in
Exhibit C, Duplication Cost). Upon expiration or
termination of this Agreement, Customer shall return
all contents of the library to Network other than the
Customized Video Segments and, if requested by
Network, shall deliver a certificate to that effect.
4) Customer shall obtain Network's written consent (to
be granted in Network's sole discretion) prior to
using the library or any of its contents in any
manner outside of the express license granted in
Section 3(d)(3) above (such as by permitting any
third party to review, access or use the library or
any of its contents). Network shall be entitled to
receive a portion of any fees or revenues received
directly or indirectly by Customer associated with
any use of the contents of the library outside of the
express license granted in Section 3(d)(3) above, and
the parties agree to negotiate in good faith
regarding the allocation of any such fees or
revenues. When and if programming is used outside of
the express license granted in Section 3(d)(3) above,
Network shall receive a credit that reasonably
describes such contents and that reads in conspicuous
lettering "COURTESY OF PLAYERS NETWORK" (or words of
similar effect) at an appropriate place in the
programming or promotional materials.
5) From time to time, Network may request to produce
programming and event coverage on Customer's
property. Any such production is to be included in
the general Network programming library and Customer
will not be charged for the same, nor will such time
be included in Customer allotted hours of monthly
field production. It is understood by Network that
Customer, may not always grant requests indicated in
this Section 3(d)(5).
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4. INTERNET AND BROADBAND DISTRIBUTION AND MARKETING SERVICES
a. GENERAL DESCRIPTION.
1) Commencing as promptly as practicable after the
Effective Date, Network shall provide the Internet
and Broadband Distribution and Marketing Services
described in EXHIBIT D attached hereto including,
without limitation, (i) providing links from
Network's Website to Customer's Wild Card signup page
on Customer Website, xxx.XxxxxXxxxxx.xxx, so as to
provide users of Network's Website best access to
Customer's Website (the "NETWORK-CUSTOMER LINKS") as
are available given Network's other commitments, (ii)
posting on Network's Website of marketing and
promotional information regarding Customer's location
and (iii) digitally encoding and enabling streaming
broadcasts of the Programming Package and the
Customized Production Segments on not more than one
website, and on Network's Website and broadband
system as in existence, as well as future systems.
2) Upon the request of Customer, Network may provide one
or more Network-Customer Links to Customer's hotel
reservations order webpage, and Customer shall pay
Network a ten percent (10%) commission for all paid
reservations booked through such Network-Customer
Links. The amounts in respect of such commissions
shall be paid on a monthly basis and shall be
accompanied by a detailed report of Customer's
on-line orders for such month. Upon reasonable notice
to Customer, Network shall have the right to audit no
more frequently than once per year Customer's records
for purposes of confirming compliance with this
Section.
3) Network-Customer Links may be modified and/or
expanded from time to time throughout the Term
pursuant to mutual agreement of the parties, except
that Network may modify the placement of the
Network-Customer Links on Network's Website in a
manner that best compliments the specific content as
determined in Network's sole discretion. To the
extent access to the Customer Websites from Network's
Site is requested or granted by Customer, and such
access is deemed to be a reproduction, transmission
or distribution, Customer hereby grants to Network a
perpetual, worldwide, non-exclusive, royalty-free
license to use, reproduce, transmit, distribute and
publicly display each of the Customer Websites so as
to make them available to users of Network's Website
via the Internet.
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4) As an option that can be added at any time, Network
will host, maintain and provide digital management
and streaming media services for Customer's
customized content and Network's own video library
content to be streamed on Customer's Websites. All of
the hosting, maintenance and administration services
will be provided for a flat monthly fee of $800.
Billing for such hosting services shall begin upon
commencement of streaming content. Network shall
provide a report of usage on a monthly basis and more
frequently if reasonably requested by Customer.
5) The phrase "transfer of content" refers to megabytes
of content transferred from Network's hosting partner
to Customer's websites. Each time an online user
accesses a video, there will be a transfer charge
which will vary depending on the size of the file and
modem speed on which a "user" accesses the file.
Network will supply Customer with a monthly transfer
report itemizing such transfers. (See Exhibit "D"
attached).
b. LIVE AND ARCHIVED WEBCASTS.
1) Customer may request, and Network shall provide, up
to two (2) webcasts over the Internet and Network's
existing broadband sites of events as designated by
Customer. Customer shall submit its request in
writing that details the length, type of event, date
of event and webcast and all other pertinent details
necessary for Network to evaluate technical aspects
of such webcast and to prepare a budget therefor.
2) Within fourteen (14) days of receipt of Customer's
written request pursuant to Section 4(b)(1), Network
shall prepare an estimated budget for such webcast,
which shall be approved by Customer. Customer shall
be obligated to pay all costs associated with such
webcast (including any and all bandwidth, production
and distribution fees) plus an producing /
administrative fee of twenty-five percent (25%) to
Network.
3) In the event there is a third party primary sponsor
("Third Party Primary Sponsor"), Customer agrees to
share equally with Network all sponsorship revenues
it receives for such webcast less the actual and
reasonable costs it incurs in connection with the
planning and production of such event.
Network may obtain secondary sponsorship to support
distribution of such webcast (i.e. Network may
arrange for webcast to be broadcast on cable
television, ITV and/or broadband channels). In the
event secondary sponsors are needed, any revenues
received will be distributed to distribution
companies at Network's discretion.
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5. PROMOTION AND USE OF NAMES
a. Customer may request that Network provide, at cost, on-premise
marketing and promotional materials such as tent cards,
elevator and marquee posters to promote the Programming
Package and any other programming being provided by Network in
accordance with this Agreement. Customer shall have the right
to approve the design and artwork of all marketing and
promotional materials prior to printing.
b. Customer may prepare and distribute its own marketing and
promotional materials describing and promoting the programming
being provided by Network hereunder.
c. Customer hereby grants to Network the right to reproduce,
alter and display all logos, trademarks, tradenames and
similar identifying material relating to Customer solely in
connection with Network's performance of its obligations
hereunder; PROVIDED, HOWEVER, that such right shall be deemed
a non-exclusive license or privilege only which confers no
property rights therein, and such license or privilege may be
revoked by Customer at any time, in which event Network shall
immediately cease use of all such material.
6. STANDARD FEES
a. INITIAL FEE
On the Effective Date, Customer shall pay to Network an
initial equipment installation and programming fee of $5,000.
b. MONTHLY PROGRAMMING PACKAGE FEE
1) No later than the first day of each month, Customer
shall pay to Network a monthly Affiliate fee of
$2,300 listed in EXHIBIT C. Upon execution Customer
shall pay to Network $4,600, which will cover both
first and last month of Network's service.
2) On the first day of each month in which the
Programming Package is being delivered, Customer
shall pay Network a monthly fee for producing the
calendar of events referred to in Section 2(a)(4)
will be Five Hundred Dollars ($500). Customized
calendar of events will not begin until requested by
Customer.
c. CUSTOMIZED VIDEO SEGMENT FEES.
As consideration for production of the Customized Video
Segments, Customer shall pay Network a fee of Fifty Three
Thousand Dollars ($53,000), which shall be paid in two
payments of $26,500. The first payment shall be due upon the
commencement of pre-production. The second payment shall be
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due upon the completion of 20 minutes of completed customized
segments.
d. INTERNET AND BROADBAND MARKETING AND DISTRIBUTION SERVICES
FEES.
Customer shall pay Network the fees listed in EXHIBIT D
associated with performance of the Internet and Broadband
Marketing and Distribution Services.
e. LATE PAYMENTS
Interest at the lesser of 1.5% per month (or partial month)
and the maximum amount permitted by law shall accrue on any
amounts not paid within ten (10) days of the due date.
7. REPRESENTATIONS, WARRANTIES, COVENANTS & INDEMNIFICATION
a. As of the Effective Date, Network and Customer each represent
and warrant to the other that: (i) it has been duly formed and
is validly existing in good standing under its state of
organization and any other states where it is required to be
qualified to do business in order to perform its obligations
under this Agreement; (ii) it has the requisite right, legal
capacity and authority to enter into the Agreement, to perform
its obligations hereunder and to consummate the transactions
contemplated hereby; (iii) this Agreement has been effectively
authorized by all necessary organizational and legal action
required by it; (iv) this Agreement constitutes its legal,
valid, and binding obligation, enforceable against it in
accordance with its terms, subject only to applicable
bankruptcy, insolvency, reorganization, moratorium or similar
laws or equitable principles affecting or limiting rights of
contracting parties and (v) it is not party to any contract or
bound by any order that will interfere with the full and
complete performance of its obligations under this Agreement.
b. Upon Customer's delivery to Network of any commercial
announcement or other programming material, Customer
represents and warrants to Network that such announcement or
material does not contain any material that violates any
trademark, service xxxx, right of privacy, copyright or
dramatic, literary privacy, image or personality right of any
third party.
c. Except as expressly provided herein, neither party shall have
any right, title or interest in or to names, logos, service
marks, patents, trademarks, copyrights or other intellectual
property of the other party.
d. Customer acknowledges that the services being provided
hereunder by Network are subjective in nature and that
Customer will have to pay additional fees and costs relating
to alterations because of qualitative differences it may have
with Network regarding their services being provided hereunder
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(particularly the Customized Video Production). Customer
further acknowledges that nothing contained herein shall be
construed as granting Customer the right to cause Network to
remove, alter, edit or modify in any manner any aspect of the
Network Programs, Network's Website or Network's broadband
system or programming.
e. Customer acknowledges that certain additional services and
benefits associated with the Programming Package and the
Internet and Broadband Distribution and Marketing Services
described herein have not yet been fully developed by Network,
such as additional television syndication exposure. While it
is the intent of the Network to further develop such benefits,
Customer acknowledges and agrees that this Agreement shall not
constitute a guarantee of when such efforts will come to
fruition.
f. Each party (in such capacity, the "INDEMNITOR") shall defend,
indemnify and forever hold harmless the other party and its
affiliates, shareholders, officers, directors, employees,
agents and partners from and against any and all claims,
losses, damages, costs or expenses (including reasonable
attorneys' fees) (collectively, "CLAIMS") relating to (i) any
breach of any representation, warranty or covenant under the
Agreement by the Indemnitor, (ii) any damage to person or
property or any claim for damages by any personnel or
subcontractor, or (iii) the provision, use, alternation,
broadcast or distribution of content provided by the other
party (whether of an editorial, advertising or other nature),
the accessibility thereto or the exchange of information over
the Internet or television (including broadband) in connection
therewith, including copyright infringement, libel, indecency,
false light, misrepresentation, invasion of privacy or image
or personality rights or violation of recording or broadcast
rights. These indemnifications do not apply to Claims to the
extent arising from the negligence or willful misconduct of
the person seeking indemnification hereunder. The
indemnifications provided hereunder shall survive the
expiration or termination of this Agreement for any reason.
The Indemnitor shall pay any reasonable costs incurred in
enforcing the indemnifications provided herein.
g. EXCEPT AS SPECIFIED IN SECTION 7(A) AND 7(B), NETWORK
EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE IN RESPECT OF THE SERVICES
PROVIDED HEREUNDER.
8. FORCE MAJEURE
Neither party shall be liable to the other for failure of performance
(but not failure to pay) hereunder by reason of any act of God,
earthquake, labor dispute, civil disturbance or insurrection,
non-delivery by program suppliers or others, disruption or breakdown of
origination or transmission facilities, or any other cause beyond such
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party's reasonable control; PROVIDED, HOWEVER, that adverse economic or
market conditions shall not by themselves constitute grounds for excuse
of performance hereunder.
9. CONFIDENTIALITY
During the Term and for a period of one (1) year thereafter, the terms
and conditions of the Agreement shall be kept confidential by the
parties and shall not be disclosed by either party to any third party
except on a need-to-know basis to persons or entities actively and
legitimately investigating the acquisition or assumption of all or a
portion of such party's business or in connection with a merger,
consolidation or reorganization with such party. Customer agrees to
keep confidential and not to use or disclose any confidential or
proprietary information relating to the business practices, strategies,
technologies or techniques of Network and agrees that such information
is the sole and exclusive property of Network. Notwithstanding any of
the foregoing in this Section 9, information required to be kept
confidential hereunder may be disclosed by a party only (i) to the
extent that such disclosure is required by any court order or
governmental agency, or as may reasonably be necessary in connection
with any regulatory proceedings, (ii) to such party's accountants,
auditors, agents and counsel to the extent such disclosure is necessary
to enable such persons or entities to provide their services to the
party in question, and (iii) to executive personnel of affiliated
companies on a need-to-know basis. Each party acknowledges that the
remedy at law for any breach by it of this Section 9 will be inadequate
and that the other party shall also be entitled to injunctive relief.
This Section 9 shall survive the expiration or termination of this
Agreement.
10. MISCELLANEOUS PROVISIONS
a. Network shall not be restricted from licensing its programming
(excluding the Customized Video Segments), or any portion
thereof, to any other entity of any nature whatsoever.
b. Except as expressly provided herein, any notice, demand,
approval, consent or other communication required or permitted
hereunder or by law shall be validly given or made only if in
writing, properly sent by first-class United States mail,
courier or telecopy, and addressed to the party for whom
intended at the address set forth in the Preamble to this
Agreement or such other address provided in writing by a
party.
c. Other than for (i) Claims arising out of breaches of Section
7(b) and Section 9, (ii) Claims described in Section 7(f)(iv)
and (iii) Claims determined by a final adjudication to have
been caused or contributed by a party's gross negligence or
willful misconduct, in no event will the measure of damages
payable by either party include, nor will either party be
liable for, any amounts for loss of income, profit or savings
or indirect, incidental, consequential, exemplary, punitive or
special damages of any party, including third parties, even if
15
such party has been advised of the possibility of such damages
in advance, and all such damages are expressly disclaimed.
d. Any waiver by either party of any breach of any term or
condition of the Agreement shall not be deemed to be a waiver
of any rights or remedies resulting from that breach, nor
shall such waiver constitute a waiver of any other term or
condition of the Agreement.
e. The Agreement cannot be modified except by written instrument
signed by each of the parties. Any controversy or claim
arising out of or relating to this Agreement, or breach
thereof, will be settled by arbitration in accordance with the
Commercial Arbitration Board Rules of the American Arbitration
Association and judgment on the award rendered by the
Arbitrator(s) may be entered in any court having jurisdiction
thereof.
f. Nothing contained herein shall be deemed to create a joint
venture or partnership between the parties.
g. The invalidity under applicable law of any provision of the
Agreement shall not affect the validity of any other provision
of the Agreement, and in the event that any provision is
deemed to be invalid or otherwise illegal or unenforceable,
the Agreement shall remain effective and shall be construed in
accordance with its terms as if the invalid, illegal or
unenforceable provision were not contained therein.
h. Each party agrees to execute such other documents and
instruments and to perform such other acts as may be
reasonably necessary to carry out the purposes and intent of
this Agreement (including, without limitation, executing
and/or causing the execution and delivery of, documents
terminating the Existing Agreements).
i. Any attempted assignment or delegation of this Agreement or
any interest hereunder by a party without the other party's
prior written consent shall be null and void; PROVIDED,
HOWEVER, that Customer shall have the right, without the
consent of Network, to assign its rights and obligations
hereunder to any successor entity in connection with a merger,
reorganization or other corporate restructuring of Customer.
j. Both parties agree to issue a joint press release upon
execution of this Agreement. Except as otherwise required by
law or regulation, neither party shall issue the first or any
subsequent press release or public announcement relating to
this Agreement or the transactions contemplated hereby without
receiving the prior written consent of the other party.
k. Unless the context of this Agreement otherwise requires, (i)
words using singular or plural number also include the plural
or singular number, respectively, (ii) the terms "hereof,"
herein," "hereby," and derivative or similar words refer to
the entire Agreement, including exhibits (which are
incorporated herein by reference), (iii) the masculine gender
16
shall include the feminine and neuter, (iv) references to
persons shall include natural persons, corporations,
partnerships, limited liability companies, unincorporated
associations and similar entities and bodies, (v) any
reference to a law, an agreement or a document shall refer to
any amendment, supplement or replacement of the same, and (vi)
whenever this Agreement refers to a number of days, such
number shall refer to calendar days unless business days are
specified.
l. Each party may engage in business activities or ventures
independently or with others irrespective of whether such
activities or ventures do or will compete with (or are with a
third party who does or competes with) the business of the
other party or its affiliates.
IN WITNESS WHEREOF, the parties have caused this Master Services Agreement to be
executed by their authorized representatives as of the date first written above.
PLAYERS NETWORK, INC. XXXXX XXXXXX HOTEL CASINO.
By: By:
--------------------------------------- ----------------------------
Print Name: Print Name:
------------------------------- --------------------
Its: Its:
-------------------------------------- ---------------------------
EXHIBITS
--------
A - Description of Programming Package
B - Description of Customized Video Production
C - Fees Schedule
D - Internet and Broadband Distribution and Marketing Services
17
EXHIBIT A
DESCRIPTION OF PROGRAMMING PACKAGE
The Programming Package shall be composed of a digital content management
system, customized programming, an in-house gaming channel program, scheduled
production updates, digital content management of streaming media remote field
productions and access to Network's programming library. The Package also
includes digital playback equipment, consisting of specialized hardware and
software. Customer shall be provided with Customer specific programming,
maintenance, marketing and promotional support.
Package includes:
|X| Access to Network's complete line of gaming instructional videos and
production library including, without limitation, all Network brands
covering table games, slots, sports, race book, and tournaments.
|X| Digital broadcast file server with 15 hours of MPEG II - quality video
|X| 24/7 system monitoring
|X| Maintenance and service of equipment installed by Network pursuant to
this Agreement
|X| System programming and installation
|X| Ongoing scheduling and program rotation
|X| Access to Network's viewership and market impact/studies.
|X| Optional Entertainment calendar of events that will be updated monthly
to promote Customer's casinos. Event calendar will be approximately 90
seconds, depending on total number of events each month, or roughly 18
minutes annually. Calendar will be composed of background graphics,
possibly moving or including animation, text information that will
either scroll or fade in and out, writing copy, a voice over (if
needed) and pictures or videos of the artist or event to be integrated.
Pictures, video and show/event information be provided by Customer and
will need additional lead time.
Network will create up to three separate calendars of events including,
but not limited to, the entertainment schedule for The Wave, The Shell
and miscellaneous tournaments and events. The calendars will be
inserted to accompany the specific programming featuring the venue.
EXHIBIT B
DESCRIPTION OF CUSTOMIZED VIDEO PRODUCTION
1. Customized Video Productions may be composed of updates with on-camera
reporters and event listings regarding various categories of
information about Customer's gaming business such as:
o TOURNAMENTS TODAY/REPORT
o NEON BUZZ/ENTERTAINMENT FEATURES
o GAMEWATCH SLOT MACHINE INSTRUCTIONAL SEGMENTS
o SLOT AND CASINO CLUB INFORMATION
o SPECIAL CASINO PROMOTIONS
o DINING FEATURES
2. Network shall prepare an updated video library consisting of B-rolling
Customer's location. The video content will feed the visuals used in
both the entertainment segments and for the re-purposing of all of
Customer's video needs. Re-purposing may include both online and
offline marketing solutions, including CD Rom, VHS videotapes,
Internet, Kiosk and Plasma Displays.
3. The Customized Video Segments shall be composed of a series of
high-energy entertainment style talent-driven production segments that
are customized from script to screen. These segments would be in
"Entertainment Tonight" style, going behind the scenes of Customer
attractions, into the kitchens finding out the secret recipes of the
chefs, and throughout the casino discovering the advantages of the
Boarding Pass membership, special casino offers, promotions, amenities
and more.
These segments should range between one and five minutes each and can
feature interviews with the personalities that make up Customer's
staff. Familiarizing guests with members of the staff will allow them
to further connect with the property, while tempting them to experience
the fun and excitement of the resort.
4. The Customized Video Segment Fees outlined in Section 6(c) of the
Agreement include all coach class air and ground transportation from
Las Vegas, Nevada to Atlantic City, New Jersey up to two trips during
the course of the Agreement. Any additional travel which may be
required by Network's production crew or equipment shall be approved in
advance by Customer.
CUSTOMIZED CONTENT PRODUCTION DETAILS
PRE-PRODUCTION
Includes:
|X| The assignment of a creative writer/producer team
|X| Pre-production creative meetings with marketing staff
|X| Writing scripts and story concepts
|X| Complete production breakdown and scheduling
|X| Casting talent
PRODUCTION THROUGH POST PRODUCTION
Includes all Equipment:
|X| One betacam camera
|X| Audio, Grip, Lighting
|X| Video tape and expendable supplies
Above the Line Crew:
|X| Producer / Director
|X| Director of Photography
Below the Line Crew:
|X| Production Coordinator
|X| Audio technicians
|X| Gaffer / Grip
|X| One Production Assistant
Post-production:
|X| Off line editing with editor
|X| On line editing with editor
|X| Music, effects and graphics
EXHIBIT C
FEE SCHEDULE
A. MONTHLY PROGRAMMING PACKAGE FEE $2,300
B. CUSTOMIZED PRODUCTION $53,000
OPTIONAL SERVICE FEES
MONTHLY CALENDAR OF EVENTS $500 per month
STREAMING, HOSTING, CONTENT LICENSING $800 per month*
*Upon commencement of streaming content.
ADDITIONAL PRODUCTION FEES
PRODUCTION
TALENT
Named Talent Quoted per job
Extras $100 per day
Voiceover $250 per VO script
CREATIVE SERVICES
Producing Fees 25% of total budget for the job
Writing $75 per hour
PRODUCTION
2-Man Crew $250 per hour / 4-hour minimum
w/ camera & equipment, lights, audio
Additional Crew Members $50 per hour or $350 per
10-hour day
(whichever is less)
CAMERA SUPPORT EQUIPMENT
Steadicam w/ operator $1,600 per day
Boom w/operator & assistant $1,400 per day
POST-PRODUCTION
Online editing w/ editor $250 per hour
Offline editing w/ editor $75 per hour
Computer animated logos, Quoted per job
special effects & graphic
MUSIC
Needle-drop music $100 per segment
Original music score Quoted per job
MARKETING MATERIALS
Restocking of our customized promotional Cost pass through
Materials
ADDITIONAL LEASED CHANNELS
Set Up/ Programming/Equipment Upgrades $4000
DUPLICATION
Beta to Digital or other mastering formats $125 per hour, plus tape stock
Beta to VHS viewing copies $40 per hour, plus tape stock
NOTE: IN THIS EXHIBIT C, A "DAY" SHALL MEAN 10 HOURS.
EXHIBIT D
INTERNET AND BROADBAND DISTRIBUTION AND MARKETING SERVICES
VALUE ADDED MARKETING
Network will provide exposure for Customer on XxxxxxxXxxxxxx.xxx for no
additional charge. This will include streaming Customized Video Segments on
Network's existing domestic international co-branded cable, DSL and wireless
networks in up to 10,000,000 subscriber homes in accordance with the terms and
conditions of its broadband agreements. Over 10,000,000 homes will be subject to
payment of fees mutually agreed by the parties. The cross-promotion services
will be streaming videos, advertising and gaming events integrated into the look
and feel of Network's Website. Network-Customer Links provided will be text
links (and not banner links).
Network will provide links on its website to advertise Customer's land-based
casinos, but not to Internet sites which offer online gambling. Network will
make special advertising rates available if Customer wishes to place ads on any
of its co-branded sites.
VIDEO STREAMING, HOSTING AND INTERNET CONTENT LICENSE
These services include the online licensing of Network's video library (except
for videos or other programming developed by Network for its other customers),
hosting streaming media, storage, transmission of content and monthly viewership
reports.
Full motion video and resort information on Network's website
xxx.XxxxxxxXxxxxxx.xxx.
Included in the monthly package, Network shall provide Customer with 30,000
megabytes of transferred content. If transferred content exceeds 30,000
megabytes, Customer agrees to pay Network an additional three cents ($0.03) per
megabyte of streaming media hosted and transferred to Customer's Websites, which
shall be paid monthly. Customer's bandwidth will vary depending on each
individual user's modem speed.
Customer agrees to pay Network for storage of content above 1GB in the amount of
$250 per GB per month (or fraction thereof).
