Common use of By Programmer Clause in Contracts

By Programmer. Programmer warrants, represents and covenants to DIRECTV that: 5.2.1 to its best knowledge after diligent review and receipt of advice of counsel with respect hereto, it is in compliance with and will throughout the Term continue to comply with all Laws applicable to, or with respect to, the Services and the provision of the Services to DIRECTV, and Programmer’s rights and obligations under this Agreement with respect to the Services and Programmer’s obligations hereunder, including without limitation, FCC rules and regulations governing the Services, if any, all relevant provisions of the Cable Television Consumer Protection and Competition Act of 1992, and the Communications Act of 1934, the effective portions of the Communications Decency Act of 1996 (as any or all may be amended and any successor, replacement or similar Laws) and any regulations promulgated under any applicable law or any of the foregoing; 5.2.2 it has the power and authority to enter into this Agreement and to fully perform its obligations hereunder and once executed this Agreement shall constitute a valid and binding agreement of Programmer enforceable in accordance with its terms; 5.2.3 the general quality and quantity of programming on the Services shall not materially change from that existing as of the date of this Agreement, and the genre of programming shall not materially change from that described in Section 1.2.1 and existing on the date of this Agreement; 5.2.4 it has obtained, and shall maintain in full force during the Term hereof, such federal, state and local authorizations as are material and necessary to operate the business it is conducting in connection with its rights and obligations under this Agreement; 5.2.5 it has secured and shall maintain in full force during the Term hereof all rights necessary for DIRECTV to use and enjoy its rights in connection with its distribution of the Services and all programming provided as part thereof, as a whole or in parts, as PPV Offerings in the Territory, including, without limitation, obtaining or all necessary trademarks, copyrights, licenses and any and all other proprietary intellectual property and other use rights necessary in connection with, and for DIRECTV’s distribution of, the Services (including without limitation, the right to use the names, titles or logos of the Services or any of its programs, the promotional materials supplied or approved by Programmer, the names, voices, photographs, music, likenesses or biographies of any individual participant or performer in, or contributor to, any program or any variations thereof) and to perform its obligations hereunder and grant the rights granted pursuant to Section 1; 5.2.6 it shall not, without DIRECTVs prior written approval, use the name or logo for “DIRECTV” or any other works owned or controlled by DIRECTV (and its related companies); 5.2.7 as of the date hereof, the programming on the Services consists of and during the Term hereof such programming shall consist of, that programming described in Section 1.2.1; 5.2.8 there are no (and it covenants that it shall not enter into directly or indirectly, allow or otherwise permit any) affiliation, distribution or any other agreements, whether written or oral, granting to distributors and/or any other third party, person or entity any form or type of exclusive or other rights that would limit or restrict in any way DIRECTV’s rights to distribute the Services in the Territory; 5.2.9 the obligations created by this Agreement, in so far as they purport to be binding on Programmer constitute legal, valid and binding obligations of Programmer enforceable in accordance with their terms; 5.2.10 it has not (and none of its principals or Affiliated Companies have) been convicted for the criminal violation of, and/or has not been found by the FCC or other federal, state or local governmental authority with appropriate jurisdiction (collectively, the “Governmental Authority”) to have violated, any federal, state or local law or regulation as applicable concerning illegal, indecent or obscene material or the transmission thereof (the “Obscenity Laws”), and Programmer is not currently aware of any pending investigation (including, without limitation, a grand jury investigation) involving the Services (or any content included in the Services) or any pending proceeding against Programmer (or any of its principals or Affiliated Companies) for the violation of any Obscenity Laws; 5.2.11 it will notify DIRECTV as soon as possible, but in no event later than the close of business on the same Business Day upon which Programmer receives notice of, or becomes aware of, any pending investigation by any Governmental Authority, or any pending criminal proceeding against Programmer (or any of its principals or Affiliated Companies), which investigation or proceeding concerns distribution of the Services or programming in the Services, including without limitation, investigations and/or proceedings concerning potential violations of Obscenity Laws. For purposes of this Section 5(2)(11), Programmer shall be deemed to be aware of any such investigation or proceeding if any of the directors, officers, outside attorneys or employees of managerial status of Programmer or an Affiliated Company has received any communication about or otherwise becomes aware of any such investigation or proceeding; 5.2.12 the Services, and all programming provided as part thereof, Programmer provides DIRECTV hereunder (A) is not intended to be obscene and, to the best of Programmer’s knowledge after diligent review, would not be found to be obscene in any jurisdiction in the Territory, and (B) complies with and, at all times that this Agreement is in effect, shall comply with the description and associated restrictions set forth in the definition of “Service” and “Services” in Section 1.2.1, Exhibit A and Schedule I thereto, including, without limitation, Programmer represents and warrants that the Services shall reflect adult content limited to the [***] type, as described in Schedule I, and shall under no circumstances contain or depict any acts set forth in the [***] column thereof; 5.2.13 to its best knowledge after diligent review and receipt of advice of legal counsel with experience in such matters, it is in compliance with and will throughout the Term continue to comply with 18 USC 2257 or 28 CFR 75 or any successor legislation or code. Programmer has prepared, maintained and executed, and at all times during the Term and for a period of seven (7) years thereafter shall, prepare, maintain and execute any documents or records, and provide Affiliate with copies of any documents or records which are required by Title 18, U.S.C. § 2257, as amended, and/or the associated regulations found at 28 C.F.R. 75.1 et. seq., as amended, and/or any successor statute or regulation (“Section 2257”). Programmer warrants and represents that it is in possession of such documents and records, and maintains them in accordance with Section 2257. Programmer agrees to appoint a “record custodian” as required under Section 2257, and will keep DIRECTV apprised of the physical address where all required records are compiled and maintained pursuant to Section 2257, along with the name of the records custodian. Programmer will display a conspicuous disclosure statement on all depictions of ‘actual sexually explicit conduct’ contained in the Services as required by Section 2257, which statement identifies the records custodian for the content and describes the physical location where the records relating to the content may be inspected as required under applicable law. If required by law, Programmer will be identified as a “primary producer” in any and all disclosure statements associated with the Services pursuant to Section 2257. Programmer further agrees to cooperate with DIRECTV in connection with any inspections or government inquiries initiated pursuant to Section 2257. DIRECTV shall have the right to inspect such documents and records at any time during regular business hours at Programmer’s location for maintaining the records with five (5) business days’ prior written notice from DIRECTV; 5.2.14 it has and throughout the Term will have a “through-to-the-viewer” license (as such term is commonly understood in the entertainment industry) from the applicable music performing rights societies and organizations (i.e., ASCAP, BMI and SESAC), in respect of all music rights contained in the Services; 5.2.15 it has, and shall have throughout the Term, the sole and exclusive right and authority to authorize the exhibition, distribution and marketing of the Services, and the ability to grant any or all of the rights actually granted and those contemplated hereunder shall remain exclusively with Programmer throughout the Term; and 5.2.16 as of date hereof, it is in compliance with [***].

By Programmer. Programmer warrants, represents and covenants to DIRECTV Affiliate that: 5.2.1 to its best knowledge after diligent review and receipt of advice of counsel with respect hereto, it is in compliance with and will throughout the Term continue to comply with all material Laws applicable to, or with respect to, the Services and the provision of the Services to DIRECTV, and Programmer’s its rights and obligations under this Agreement with respect to the Services and Programmer’s obligations hereunderAgreement, including without limitation, FCC rules and regulations governing the Services, if any, all relevant provisions of the Cable Television Consumer Protection and Competition Act of 1992, and the Communications Act of 1934, the effective portions of the Communications Decency Act of 1996 1992 (as any or all such Law may be amended and any successor, replacement or similar LawsLaw or statute) and any and all regulations promulgated under any applicable law or any of the foregoingissued pursuant thereto; 5.2.2 it has the power and authority to enter into this Agreement and to fully perform its obligations hereunder and once executed this Agreement shall constitute a valid and binding agreement of Programmer enforceable in accordance with its terms; 5.2.3 the general quality and quantity of programming on the Services Service shall not materially change from that existing as of the date of this Agreement, and the genre of programming shall not materially change from that described in Section 1.2.1 1.3.1 and existing on the date of this Agreement; 5.2.4 it has obtained, and shall maintain in full force during the Term hereof, such federal, state and local authorizations as are material and necessary to operate the business it is conducting in connection with its rights and obligations under this Agreement; 5.2.5 it has secured and shall maintain in full force during the Term hereof all rights necessary for DIRECTV Affiliate to use and enjoy its rights in connection with its distribution of the Services and all programming provided as part thereof, as a whole or in parts, as PPV Offerings in the TerritoryService, including, without limitation, obtaining or all necessary trademarks, copyrights, licenses and any and all other proprietary intellectual property and other use rights necessary in connection with, and for DIRECTVAffiliate’s distribution of, the Services (including without limitation, the right to use the names, titles or logos of the Services or any of its programs, the promotional materials supplied or approved by Programmer, the names, voices, photographs, music, likenesses or biographies of any individual participant or performer in, or contributor to, any program or any variations thereof) Service and to perform its obligations hereunder and grant the rights granted pursuant to Section 1; 5.2.6 it shall not, without DIRECTVs Affiliate’s prior written approval, use the name or logo for “DIRECTV” or any other works owned or controlled by DIRECTV Affiliate (and its related companiesAffiliated Companies); provided that, without Affiliate’s prior approval, Programmer shall be permitted to list Affiliate’s name in materials distributed to clients, advertisers and programmers identifying the sources of distribution of the Service; 5.2.7 as of the date hereof, the programming on the Services Service consists of and during the Term hereof such programming shall consist of, that programming described in Section 1.2.11.3.1 (including Exhibits A and B); 5.2.8 there are no (and it covenants that it shall not not, during the Term, enter into directly or indirectly, allow or otherwise permit any) affiliation, distribution or any other agreements, whether written or oral, granting to distributors and/or any other third party, person or entity any form or type of exclusive or other rights that would limit or restrict in any way DIRECTVAffiliate’s rights as granted herein to distribute the Services Service in the Territory; 5.2.9 the obligations created by this Agreement, in so far as they purport to be binding on Programmer constitute legal, valid and binding obligations of Programmer enforceable in accordance with their terms; 5.2.10 it has not (and none of its principals or Affiliated Companies have) been convicted for the criminal violation of, and/or has not been found by the FCC or other federal, state or local governmental authority with appropriate jurisdiction (collectively, the “Governmental Authority”) to have violated, any federal, state or local law or regulation as applicable concerning illegal, indecent or obscene material or the transmission thereof (the “Obscenity Laws”), and Programmer is not currently aware of any pending investigation (including, without limitation, a grand jury investigation) involving in compliance with all applicable Laws relating to the Services (or any content included in the Services) or any pending proceeding against Programmer (or any of its principals or Affiliated Companies) for the violation of any Obscenity Laws; 5.2.11 it will notify DIRECTV as soon as possible, but in no event later than the close of business on the same Business Day upon which Programmer receives notice of, or becomes aware of, any pending investigation by any Governmental Authority, or any pending criminal proceeding against Programmer (or any of its principals or Affiliated Companies), which investigation or proceeding concerns distribution of the Services or programming in the Services, Service (including without limitation, investigations and/or proceedings concerning potential violations all applicable provisions of Obscenity Laws. For purposes the Children’s Television Act of this Section 5(2)(111990 and the closed captioning requirements as set out in FCC regulations under 47 C.F.R.§79.1), Programmer shall be deemed with which the failure to be aware of any such investigation or proceeding if any of the directors, officers, outside attorneys or employees of managerial status of Programmer or an Affiliated Company has received any communication about or otherwise becomes aware of any such investigation or proceeding;comply would result in a material adverse effect on Affiliate; and 5.2.12 the Services, and all programming provided as part thereof, Programmer provides DIRECTV hereunder (A) is not intended to be obscene and, to the best of Programmer’s knowledge after diligent review, would not be found to be obscene in any jurisdiction in the Territory, and (B) complies with and, at all times that this Agreement is in effect, shall comply with the description and associated restrictions set forth in the definition of “Service” and “Services” in Section 1.2.1, Exhibit A and Schedule I thereto, including, without limitation, Programmer represents and warrants that the Services shall reflect adult content limited to the [***] type, as described in Schedule I, and shall under no circumstances contain or depict any acts set forth in the [***] column thereof; 5.2.13 to its best knowledge after diligent review and receipt of advice of legal counsel with experience in such matters, 5.2.10 it is in compliance with and will throughout the Term continue to comply with 18 USC 2257 or 28 CFR 75 or any successor legislation or code. Programmer has prepared, maintained and executed, and at all times during the Term and for a period of seven (7) years thereafter shall, prepare, maintain and execute any documents or records, and provide Affiliate with copies of any documents or records which are required by Title 18, U.S.C. § 2257, as amended, and/or the associated regulations found at 28 C.F.R. 75.1 et. seqmost favored nations provision set forth in Section 2.4 hereof., as amended, and/or any successor statute or regulation (“Section 2257”). Programmer warrants and represents that it is in possession of such documents and records, and maintains them in accordance with Section 2257. Programmer agrees to appoint a “record custodian” as required under Section 2257, and will keep DIRECTV apprised of the physical address where all required records are compiled and maintained pursuant to Section 2257, along with the name of the records custodian. Programmer will display a conspicuous disclosure statement on all depictions of ‘actual sexually explicit conduct’ contained in the Services as required by Section 2257, which statement identifies the records custodian for the content and describes the physical location where the records relating to the content may be inspected as required under applicable law. If required by law, Programmer will be identified as a “primary producer” in any and all disclosure statements associated with the Services pursuant to Section 2257. Programmer further agrees to cooperate with DIRECTV in connection with any inspections or government inquiries initiated pursuant to Section 2257. DIRECTV shall have the right to inspect such documents and records at any time during regular business hours at Programmer’s location for maintaining the records with five (5) business days’ prior written notice from DIRECTV; 5.2.14 it has and throughout the Term will have a “through-to-the-viewer” license (as such term is commonly understood in the entertainment industry) from the applicable music performing rights societies and organizations (i.e., ASCAP, BMI and SESAC), in respect of all music rights contained in the Services; 5.2.15 it has, and shall have throughout the Term, the sole and exclusive right and authority to authorize the exhibition, distribution and marketing of the Services, and the ability to grant any or all of the rights actually granted and those contemplated hereunder shall remain exclusively with Programmer throughout the Term; and 5.2.16 as of date hereof, it is in compliance with [***].

By Programmer. Programmer warrants, represents and covenants to DIRECTV Affiliate that: 5.2.1 (i) to its best knowledge after diligent review and receipt of advice of legal counsel with respect heretoexperience in such matters, it is in compliance with and will throughout the Term continue to comply with all material Laws applicable to, or with respect to, the Services Service and the provision of the Services Service to DIRECTVAffiliate, and Programmer’s rights and obligations under this Agreement with respect to the Services Service and Programmer’s obligations hereunder, including without limitation, FCC rules and regulations governing the ServicesService, if any, all relevant provisions of the Cable Television Consumer Protection and Competition Act of 1992, and the Communications Act of 1934, the effective portions of the Communications Decency Act of 1996 (as any or all may be amended and any successor, replacement or similar Laws) and any regulations promulgated under any applicable law or any of the foregoing; 5.2.2 (ii) it has the power and authority to enter into this Agreement and to fully perform its obligations hereunder hereunder; (iii) it shall provide the Service for the Territory, at its sole cost and once executed this Agreement shall constitute a valid and binding agreement of Programmer enforceable expense (together with any necessary equipment, including without limitation, backup or reserve equipment), in accordance with its terms; 5.2.3 and subject to the general quality terms and quantity of programming on the Services shall not materially change from that existing as of the date of conditions set forth in this Agreement, including, without limitation, that it shall (A) arrange and pay for the genre transmission of programming shall not materially change the Service from that described in Section 1.2.1 Programmer’s U.S. Satellite to the Broadcast Center, (B) encode and existing on scramble the date of this AgreementService at its sole expense, (C) cause its uplink authorization center to authorize and enable Affiliate’s descramblers to receive and descramble the Service, and (D) provide to Affiliate *****; 5.2.4 (iv) it shall promptly provide Affiliate with any and all promotional materials of the Service which it generally provides to any other distributor of the Service, at Programmer’s sole cost and expense; and if Affiliate shall request additional such materials, then Programmer shall promptly provide such materials to Affiliate and Affiliate shall reimburse Programmer for the reasonable actual costs thereof; (v) it has obtained, and shall maintain in full force during the Term hereof, such federal, state and local authorizations as are necessary to comply with Laws or which are material and necessary to operate the business it is conducting in connection with its rights and obligations under this Agreement; 5.2.5 (vi) it has secured and shall maintain in full force during the Term hereof obtained or will obtain at its sole expense all rights necessary for DIRECTV Affiliate to use and enjoy its rights in connection with its distribution of the Services and all programming provided as part thereof, as a whole or in parts, as PPV Offerings in the TerritoryService, including, without limitation, obtaining or all necessary trademarks, copyrights, licenses and any and all other proprietary intellectual proprietary, intellectual, property and other use rights necessary in connection with, and or for DIRECTVAffiliate’s distribution ofof the Service, and at all times during the Services (including without limitationTerm “PLAYBOY TV,” “SPICE WILD,” “THE HOT NETWORK,” “FRESH!,” “CLUB JENNA”, the right to use “SPICE:XCESS” or “PLAYBOY TV EN ESPAÑOL” or the names, titles or logos of the Services Service (or any successors thereto) or any of its their programs, the promotional materials supplied or approved by Programmer, the names, voices, photographs, music, likenesses or biographies of any individual participant or performer in, or contributor to, any program or any variations thereof) and to perform its obligations hereunder and grant the rights granted pursuant to Section 1; 5.2.6 it shall not, without DIRECTVs prior written approval, use the name or logo for “DIRECTV” or any other works owned or controlled by DIRECTV (and its related companies); 5.2.7 as of the date hereof, the programming on the Services consists of and during the Term hereof such programming shall consist of, that programming described in Section 1.2.1; 5.2.8 vii) there are no (and it covenants that it shall not enter into directly or indirectly, allow or otherwise permit any) affiliation, distribution or any other agreements, whether written or oral, granting to distributors and/or any other third party, person or entity any form or type of exclusive or other rights that would limit or restrict in any way DIRECTVAffiliate’s rights to distribute the Services Service in the Territory; 5.2.9 (viii) it shall not, without Affiliate’s prior written approval, use the obligations created by this Agreementname of or logo for “DIRECTV,” or any variations thereof, in so far as they purport to be binding on Programmer constitute legalfor any purpose, valid and binding obligations of Programmer enforceable in accordance with their termswithout Affiliate’s prior written consent; 5.2.10 it has not (and none of its principals or Affiliated Companies haveix) been convicted for the criminal violation ofthere is no actual and, and/or has not been found by the FCC or other federalto Programmer’s knowledge, state or local governmental authority with appropriate jurisdiction (collectively, the “Governmental Authority”) to have violated, any federal, state or local law or regulation as applicable concerning illegal, indecent or obscene material or the transmission thereof (the “Obscenity Laws”), and Programmer there is not currently aware of any no pending investigation (including, without limitation, a grand jury investigation) involving the Services Service (or any content included in the ServicesService) or any pending proceeding against Programmer (or any of its principals or Affiliated Companies) for the violation of any federal, state or local law or regulation, as applicable, concerning illegal, indecent or obscene material or the transmission thereof (the “Obscenity Laws”); 5.2.11 (x) it will notify DIRECTV Affiliate as soon as possiblereasonably practical, but in no event later more than the close of business on the same two Business Day upon which Programmer receives notice Days, after receiving notification of, or becomes becoming aware of, any pending investigation by any Governmental Authoritygovernmental authority, or any pending criminal proceeding against Programmer (or any of its principals or Affiliated CompaniesCompanies (as defined in Section 8(a)), which investigation or proceeding concerns distribution of the Services Service or programming in the ServicesService, including without limitation, investigations and/or any/or proceedings concerning potential violations of Obscenity Laws. For purposes of this Section 5(2)(115(b)(x), Programmer shall be deemed to be aware of any such investigation or proceeding if any of the directors, officers, outside attorneys agents, representatives or employees of managerial status functions of Programmer or an Affiliated Company has received any communication about or otherwise becomes aware of any such investigation or proceeding; 5.2.12 the Services, and all programming provided as part thereof, Programmer provides DIRECTV hereunder (Axi) is not intended to be obscene and, to the best of Programmer’s knowledge after diligent reviewreview and advice of counsel with experience in such matters, would the programming Service and all programming provided as part thereof that Programmer provides Affiliate hereunder complies with Obscenity Laws and is not be found to be obscene violative of Obscenity Laws in any jurisdiction in the Territory; (xii) it solely and exclusively possesses, and (B) complies with and, will at all times that this Agreement is during the Term so possess, any and all rights necessary to grant Affiliate the right to distribute the Service and all programming provided as part thereof, as a whole or in effectparts, shall comply with as Subscription Offering(s) and PPV Offering(s), as the description and associated restrictions set forth case may be, in the definition Territory (it being understood and agreed that Programmer has granted and may grant similar rights to other third parties); (xiii) nothing contained in the Service or in any other material supplied by Programmer to Affiliate violates, infringes, or conflicts with any rights of “Service” and “Services” in Section 1.2.1, Exhibit A and Schedule I thereto, any person or entity (including, without limitation, Programmer represents copyright, trademark, music performance and warrants that the Services shall reflect adult content limited all other proprietary and/or intellectual rights); (xiv) there are no outstanding (or, to the [***] typebest of Programmer’s knowledge, threatened) judgments or pending claims, liens, charges, restrictions, or encumbrances on or related to the Service or any programming provided as described in Schedule I, part thereof that may materially interfere with the rights of Affiliate under this Agreement; (xv) Programmer is the sole entity that has entered into and shall under no circumstances contain or depict enter into agreements and obligations with other distributors with respect to the Service and to any acts set forth in and all programming provided as part of the [***] column thereofService; 5.2.13 (xvi) except to the extent expressly permitted hereunder, during the Term, the Service shall not include any direct sales, advertising or infomercials; (xvii) the individual executing this Agreement on its behalf has the authority to do so; (xviii) to its best knowledge after diligent review and receipt of advice of legal counsel with experience in such matters, it is in compliance with and will throughout the Term continue to comply with 18 USC 2257 or 28 CFR 75 or any successor legislation or code. Programmer has prepared, maintained and executed, and at all times during the Term and for a period of seven (7) years thereafter shall, prepare, maintain and execute any documents or records, and provide Affiliate with copies of any documents or records which are required by Title 18, U.S.C. § 2257, as amended, and/or the associated regulations found at 28 C.F.R. 75.1 et. seq., as amended, and/or any successor statute or regulation (“Section 2257”). Programmer warrants and represents that it is in possession of such documents and records, and maintains them in accordance with Section 2257. Programmer agrees to appoint a “record custodian” as required under Section 2257, and will keep DIRECTV Affiliate apprised of the physical address where all required records are compiled and maintained pursuant to Section 2257, along with the name of the records custodian. Programmer will display a conspicuous disclosure statement on all depictions of ‘actual sexually explicit conduct’ contained in the Services as required by Section 2257, which statement identifies the records custodian for the content and describes the physical location where the records relating to the content may be inspected as required under applicable law. If required by law, Programmer will be identified as a “primary producer” in any and all disclosure statements associated with the Services pursuant to Section 2257. Programmer further agrees to cooperate with DIRECTV Affiliate in connection with any inspections or government inquiries initiated pursuant to Section 2257. DIRECTV Affiliate shall have the right to inspect such documents and records at any time during regular business hours at Programmer’s location for maintaining the records with five (5) business days’ prior written notice from DIRECTV; 5.2.14 it has and throughout the Term will have a “through-to-the-viewer” license (as such term is commonly understood in the entertainment industry) from the applicable music performing rights societies and organizations (i.e., ASCAP, BMI and SESAC), in respect of all music rights contained in the Services; 5.2.15 it has, and shall have throughout the Term, the sole and exclusive right and authority to authorize the exhibition, distribution and marketing of the Services, and the ability to grant any or all of the rights actually granted and those contemplated hereunder shall remain exclusively with Programmer throughout the Term; and 5.2.16 as of date hereof, it is in compliance with [***]Affiliate.