Agreement
AGREEMENT made and entered into this 25th day of November 1996 by and
between "Pages From a Rabbit's Journal" (hereinafter referred to as
"Rabbit") which is a production of Nightwing Entertainment, Inc. the duly
authorized agent and distributor for and on behalf of the copyright
holder(s) and Channel America Television Network, Inc. (Hereinafter
referred to as "CA").
Subject to and in accordance with the "Standard Terms and Conditions"
attached and make a part of this Agreement, Rabbit grants to CA and CA
accepts an exclusive license with respect to the Program(s) and under any
copyright covering any matter included in the picture and sound recorded
for reproduction in connection with the televising of the Program(s), to
exhibit the Program(s) and to reproduce the recorded sound in
synchronization and as part, the exhibition of the Program(s), over the
facilities of the television network herein indicated, operating under
license by The Federal Communications Commission (hereinafter referred to
as "FCC"), and for no other purpose. This license is exclusive to the
extent that, during the terms of this license, Rabbit may not license or
other wise authorize the broadcast of the Program to any other media
designated as broadcast, cablecast or via satellite without the permission
of CA.
Titles: Pages From a Rabbit's Journal
Number of Telecasts: Minimum of 13 and maximum of 65
Daypart of Telecasts: 1/2 hour strip or 30 minute weekly
Term of License: Start date: TBD
End date: TBD
Distribution via: Telstar 000X, Xxxxxxxxxxx 00
Xxxxxxx Xxxxxxx affiliates
Purchase Price: $250,000 per episode
Means of Delivery: Beta SP
Channel America
0000 Xxxxx Xxxxxxx Xxx.
Xxxxxxxx, XX 00000
Attn: D. Xxxxx Xxxxxxx
-or-
Any such site which is designated in
Writing by CA.
Licensee acknowledges that the licensing of the Program(s) specified in
this Agreement have been separately negotiated and severally agreed upon;
that the prices set forth represent the fair value of the Program(s); that
Rabbit did not directly or indirectly condition the granting of this
license of any one or more of the Programs upon CA agreeing to licensing
hereunder of more than one programs; and that the licensing hereunder of
more than one program or more than one telecast is for the convenience of
Rabbit and CA.
Licensee acknowledge the agreement in it's entity shall be implemented upon
delivery to, and acceptance by CA of the first program. Said acceptance
shall be at the sole and absolute discretion of CA.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
Accepted and agreed by:
s/Xxxxxx Xxxxx 11/28/96
Xxxxxx Xxxxx Date
President
Nightwing Entertainment Group, Inc.
s/A. Xxxxx Xxxxxxx 11/28/96
A. Xxxxx Xxxxxxx Date
Director
Channel America Television Network, Inc.
Standard Terms and Conditions
1. Delivery of Programs
1.1 Rabbit will deliver or cause to be delivered to CA the programs on
Beta SP videotapes(s) (hereinafter the "copy" or "Copies"). Delivery
of the Copies to CA or CA's agent or to a common carrier for parcel
service or other express shipment, or to postal authorities for
mailing or any other mode of delivery selected by Rabbit shall be
deemed to be complete delivery by Rabbit to CA. All rights, title and
interest in the Copies so delivered to CA shall, at all times, remain
the property of Rabbit, subject only to Licensee's right to make use
of the copies in accordance with the terms of this Agreement.
1.2 CA shall examine such Copy immediately upon receipt thereof and shall
immediately notify Rabbit by telephone and fax if such Copy is
physically defective for television broadcasting by customary industry
standards. If any copy has not reached it's destination, CA shall
notify Rabbit by telephone and fax. If CA notifies Rabbit of any
physical defect of failure of delivery as aforesaid, and Rabbit does
not deliver to CA a replacement Copy of the same program (or another
Program of comparable quality) in time for the scheduled telecast,
such telecast shall be deemed eliminated and the Program withdrawn, as
provided in Subclause 11.2 of this Agreement. Failure of CA to give
Rabbit such notice as aforesaid shall be deemed CA's irrevocable
acknowledgment that such Copy was timely received and satisfactory in
all respects.
2. Return of Copies
Licensee agrees to return to Rabbit prepaid, at the end of term of this
agreement in the same condition as delivered by Rabbit, normal wear and
tear form proper use excepted. Such Copy shall be delivered to Rabbit, or
to any other party at such place or places Rabbit may from time to time
designate. Additionally, CA agrees to return to Rabbit, prepaid, all other
material that may have been furnished by Rabbit following completion of use
of such material by CA. If the Copies are lost, damaged, stolen or
destroyed, CA will by Rabbit the costs of replacement thereof. Such
payment shall not by construed to transfer to CA any right, title or
interest in or to the Copies. Upon Rabbit's request in writing, CA shall
destroy such copies and furnish Rabbit with appropriate certificates of
destruction.
3. Alteration of Copies
Each program shall be telecast in its entirety in a single continuous time
period interrupted only by commercial, public service, station break
announcements and any and all produced wrap-arounds. Licensee may, if
necessary, make such minor cuts as are necessary to conform to time segment
requirements, but under no condition, shall licensee delete o reposition
the copyright notice or the credits or billing incorporated in the programs
as delivered by Rabbit. CA may make, produce or cause to produce
insertions, wrap-arounds and/or minor cuts which shall not adversely affect
the artistic or pictorial qualify of the Program or interfere with it's
continuity.
4. Telecast Rights
4.1 CA agrees that it shall telecast each Program licensed hereunder from
the originating broadcast uplink and transponder of the network for
free home reception by the public and for downlink and/or broadcast
and/or cablecast by any and all affiliates of the Networks including
those affiliates now under contract to CA and those affiliates which
may be added during the term of this agreement. CA shall not telecast
any Program into any place where an admission price is charged. CA
agrees that it will not cause or authorize or permit the duplication
or recording of any Program or sound track thereof, or any part
thereof, or use of any of the Programs for any purpose other than the
purpose herein specified.
4.2 Rabbit hereby acknowledges that CA is a network and that its broadcast
signal is carried by satellite transmission, cable television systems,
full power television broadcast stations and low power television
broadcast stations and is licensed as a "free broadcast signal" by the
FCC. In consideration of the above, Rabbit acknowledges that the
Agreement and the licensing fees for the programs are so designated as
to include fees related to the broadcast of programs in all markets in
which the licensee's signal is currently carried and any all markets
it may be carried during the term of this Agreement.
4.3 Rabbit hereby acknowledges that CA must maintain the right to pre-empt
any and all of its programming. CA in turn states and Rabbit in turn
does hereby acknowledge that CA will maintain best efforts in the
clearance, distribution and broadcast of the programming upon the
mutually agreeable plan for broadcast and that CA agrees to work
closely with Rabbit in effectively marketing the programming to the
current affiliates and potential affiliates of the network.
5. Use of names for advertising
5.1 Licensee warrants and agrees that:
5.1.1 It will abide by and comply with the advertising and billing
instructions as Rabbit may furnish CA, and that any advertising
supplied by Rabbit to CA will not constitute any express or implied
endorsement of any products, services or sponsors;
5.1.2 It will not advertise or announce in any manner or media any
title changed by Rabbit of any Program or Programs withdrawn by
Rabbit; and
5.1.3 It will abide by and comply with the on screen credits contained
within the programming as it appears on the Copies of the Programs
delivered to CA.
5.2 Licensor warrants and agrees that
5.2.1 CA will be included in all press releases issued by Rabbit until
the end of the term of this agreement.
5.2.2 Rabbit will deliver a preview copy of all press releases to CA
during the term of this agreement; in turn, CA will deliver a preview
copy of any press release CA may initiate regarding Rabbit prior to
its general release.
Both parties agree to:
5.3 Market and exploit Rabbit and CA jointly to the mutual benefit of both
parties.
6. Force Majeure:
If Rabbit shall fail to make timely delivery of any Copy or Copies
hereunder by reason of any Act of God, war, fire, flood, strike, labor
dispute, public disaster, transportation or technical difficulties, order
or decree of governmental agency or any other similar or dissimilar cause
beyond the control of Rabbit, such failure on the part of Rabbit shall not
be deemed to be a breach of this Agreement.
7. Taxes:
CA shall pay and hold Rabbit harmless from all taxes (excluding Rabbit's
income and franchise taxes) charges, assessments and other fees now or
hereafter impose or based upon or resulting from the delivery, exhibition,
possession, or use by CA of the Copies and Programs licensed hereunder.
8. Compensation to and Use of Commercial inventory by Rabbit
8.1 In consideration of the license and other rights herein granted to CA,
CA agrees to pay $250,000 per episode within 5 business days of
receipt of said episode.
8.2 In conjunction with the sale of the commercial inventory, Rabbit
agrees to provide an accounting of all transactions regarding same
with Rabbit company books and records pertaining thereto available to
CA for inspection upon 24 hour written notice. Further, in accordance
with the aforementioned, CA agrees to provide affidavits of broadcast
to said advertisers.
8.3 Rabbit acknowledge that CA is a network and that the license granted
hereunder to CA any revenue derived therefrom pursuant to the terms
hereof are based upon the effective reach of the network as it exist
today and to the extent that it's effective reach may encompass during
the term of this Agreement. CA will notify Rabbit in writing of the
extent of the clearances pertaining to their program(s).
8.4 CA grants and Rabbit acknowledges that the commercial spots are part
of the normal commercial inventory of CA and the network. CA also
acknowledges that this inventory will be used by a third party(s) in
accordance with the sale of the inventory. Rabbit acknowledges that
any commercial submitted for broadcast as practices of the network and
if in the opinion of CA said commercial spot(s) may by in violation of
FCC regulations commercial spot(s) the business and or the relations
with the affiliates may be damaged and/or the spirit and content of
the spot(s) are not within the confines of the agreement, CA shall
have the right to reject such spot(s) and request a substitute spot
and/or replace them with written notice.
9. Warranty and indemnity
9.1 Rabbit represents and warrants that it has the right to grant this
license for the telecast and/or cablecasting and/or satellite
transmission of the Programs specified including the sound tracks
forming a part thereof, and that such use by CA will not violate the
rights of others.
9.2 Rabbit agrees to indemnify and hold CA, its officers, employees,
successors and assigns free and harmless from any and all claims,
damages, liabilities, cost, royalties and/or expensed, including
reasonable attorney's fees, inclurred by CA by reason of the breach of
the foregoing warranty, provided that:
9.2.1 CA notifies Rabbit promptly of any such claim or of the
commencement of any such action or proceeding and delegated complete
and sole authority to Rabbit, if Rabbit so requires, to defend or
settle same and cooperates fully with Rabbit in the defense thereof.
9.2.1 CA notifies Rabbit promptly of any such claim or of the
commencement of any such action or proceeding and delegated complete
and sole authority to Rabbit, if Rabbit so requires, to defend or
settle same, and cooperates fully with Rabbit in the defense thereof.
9.2.2 CA does not exhibit or continue to exhibit any Program after
Licensee's receipt of such claim without the written consent of
Rabbit; and
9.2.3 Rabbit shall not in any circumstances be liable for loss of
profits or consequential damages.
The above indemnity shall be CA's only remedy for breach of the warranty.
Rabbit shall be entitled, but not obligated, to defend, at its own expense,
any action or proceeding arising out of an alleged breach of the foregone
warranty.
9.3 CA agrees to indemnify, defend and hold Rabbit, its officers,
employees, successors and assigns, free and harmless from any and all
claims, damages, liabilities, cost or expenses, including reasonable
attorney's fees, arising out of or in connection with the use by
Rabbit, it successors, assigns and sublicensees, of the Copies or
Programs hereunder, or arising out of or by reason of, any breach of
warranty, undertaking, representation or agreement make or entered
into by CA.
9.4 Rabbit agrees to indemnify, defend and hold CA, its officers,
employees, successors and assigns, fee and harmless from any and all
claims, damages, liabilities, costs or expenses, including reasonably
attorney's fees, arising out of or in connection with the use by CA,
its successors, assigns and sublicensees, of the Copies or Programs
hereunder, or arising out of or by reason of, any breach of warranty,
undertaking, representation or agreement make or entered into by
Rabbit.
10. Music:
10.1 Rabbit warrants that the performing rights in the music contained in
the Copies are either controlled by a performing rights society having
jurisdiction; in the public domain; or are controlled by Rabbit to the
extent necessary to permit CA's uses.
10.2 Rabbit represent and/or warrants that CA may exercise the performing
rights to the music without the payment of a performing rights royalty
or license fee. Rabbit represents and warrants that it has secured
any performing rights licenses necessary for the telecast of the music
contained in each Copy and shall hold CA harmless from any liability
or damage arising from its failure to do so.
11. Withdrawal and adjustments of programs
11.1 CA may, in their absolute discretion, withdraw at any time any
licensed Program if it is determined that the telecasting thereof
would or might infringe upon the rights of others or violate any law,
court order, government regulation or other ruling of any government
agency, or constitute a breach of the use permitted hereby of the
licensed Program or the material or rights contained therein.
11.2 If Rabbit must withdraw any Program as set forth in Subclause 11.1
before its initial telecast, it may do so only with the written
approval of A under those terms and conditions set forth by CA.
11.3 If CA elects to withdraw any Program as set forth in Subclause 11.1
before its initial telecast, CA shall have the right in its sol
discretion, either to accept a program of comparable quality (which
program shall be deemed to replace the Program withdrawn) or may
reduce the number of Programs to be delivered and agreed to by one,
and a refund or credit shall be given at CA's discretion, of any such
fees or commercial air time for such Program.
11.4 If a substitute is not provided for a withdrawn Program, there shall
be refunded or credited to Licensee's account a proportionate part of
the applicable revenue prorated as that proportionate part of the
revenue or fee as a whole for the term of this Agreement.
11.5 If a Copy of any withdrawn Program has been shipped to CA, CA will
promptly return it to Rabbit, at the address above written.
12. Bankruptcy and Default:
12.1 If CA defaults in to Rabbit as specified here in accordance with the
terms of this agreement, and such default continues for a period ten
(10) days, or if CA fails to duly perform or observe any term,
covenant or condition of this Agreement, or, if CA is adjudicated as
bankrupt, or files a petition in bankruptcy, or makes an assignment of
the benefit of creditors or takes advantage of the provisions of any
bankruptcy or debtor relief act, or if any involuntary petition in
bankruptcy is filed against CA and is not vacated or discharged within
thirty (30) days, or if Licensee voluntarily or by operation of law
loses control of the above-named television network or its interest
therein, or the license to operate the same, then, and upon the
occurrence of any one or more of such events, any or all of the sums
remaining to be paid under this Agreement shall immediately become due
and payable to Rabbit, regardless of the due date thereof, and, in
addition, and without prejudice to any right or remedy which may be
available to Rabbit at law or in equity, and without in any way
discharging or releasing CA from any of its obligations under this
Agreement, Rabbit shall have the rights of CA and/or suspend the
further delivery of Copies until such defaults have ceased and have
been remedied and/or seized, wherever found, any Copy of any licensed
Program delivered to CA hereunder.
13. Expiration and Renewal of Terms:
13.1 Notwithstanding anything contained herein to the contrary, this
Agreement shall be deemed terminated with respect to such date upon
which the last permitted telecast by be broadcast by CA.
13.2 Notwithstanding anything contained herein, both parties agree that at
any time during the term of this Agreement, either party may entertain
the other with respect to a renewal or extension of the Agreement; the
consummation of any such transaction not being a pre-requisite to the
consummation or terms of this Agreement.
14. Assignment
14.1 Rabbit may not freely assign this Agreement, or any portion thereof,
to its successor(s) or to any of its affiliated, associated or
subsidiary companies and Licensing agrees that performances of any of
Rabbit's obligations under this Agreement performed by a third party
shall be accepted only if approved in writing by Ca.
14.2 This Agreement may not be assigned by CA, either voluntarily or by
operation of law, without the prior written consent of Rabbit. Any
such assignment, if consented to by Rabbit, shall not relieve CA of
its obligations hereunder.
15. Federal Communications Commission
Reference is hereby make to the Federal Communications Commission ("FCC")
relating to broadcast standards and practices as regulated by that
governing agency. Rabbit warrants that, to the best of its knowledge,
information and belief, all such Programs listed herein confirm to the
aforementioned requirements of the FCC.
16. General
16.1 Subject to the provisions of Clause 14, this Agreement and all of its
term, conditions and other provision and all rights shall inure to the
benefit of, and shall be binding upon the parties and to their
respective successors and assigns.
16.2 The titles of the Clauses of this Agreement are for convenience only
and shall not in any way effect the interpretation of any clause of
this Agreement of the Agreement itself.
16.3 A waiver by either party of any of the terms or conditions of this
Agreement shall be deemed or construed to be a waiver of such term or
condition for the future, or of any subsequent breach thereof. All
remedies, rights, undertakings, obligations and agreements contained
in this Agreement shall be cumulative and none of them shall be in
limitation of any other remedy, right, undertaking obligation or
agreement of either party.
16.4 All notices, statements and other documents required to be given shall
be given in writing either by personal delivery and/or by mail (except
as herein otherwise expressly provided) at the respective addressee of
the parties as set forth or such addresses as may be designated in
writing by either party, notice given by mail or by similar delivery
shall be deemed given on date of mailing or of prepaid receipt of
similar delivery system at it's designated office.
16.5 This Agreement and all matters or issues collateral thereto shall be
subject to the laws of the State of New York.
16.6 This Agreement constitutes the entire agreement between Rabbit and Ca
with respect to the subject matter herein contained and this Agreement
cannot be changed or terminated orally, and no changes, amendments or
assignments thereof shall be binding upon Rabbit until accepted in
writing by duly authorized officer of Rabbit.
16.7 This Agreement supersedes all prior written or oral communication or
understanding between the parties concerning the subject matter.
Accepted by:
s/Xxxxxx X. Xxxxx 11/28/96
Xxxxxx X. Xxxxx Date
President
Nightwing Entertainment Group, Inc.
s/D. Xxxxx Xxxxxxx 11/28/96
D. Xxxxx Xxxxxxx Date
Director
Channel America Television Network, Inc.
