Exhibit 10.10
PORTIONS HEREIN IDENTIFIED BY [***] HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
A COMPLETE COPY OF THIS DOCUMENT HAS BEEN FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
NEWS REPORT
BROADCASTING
AGREEMENT
AUSTEREO NETWORK
THE AUSTRALIAN TRAFFIC NETWORK PTY LIMITED (ATN)
AUSTEREO PTY LIMITED (BROADCASTER)
News report broadcasting agreement / page 1
NEWS REPORT BROADCASTING AGREEMENT
AUSTEREO NETWORK
DETAILS 5
AGREED TERMS 6
1. DEFINED TERMS & INTERPRETATION 6
1.1. Defined terms 6
1.2. Interpretation 8
1.3. Headings 9
2. Term 9
3. Reports 10
3.1. Provision of Reports 10
3.2. Method of provision of Reports 10
3.3. Broadcasting of Reports 11
3.4. Additional Reports 11
3.5. Restricted Days 13
3.6. Default in Provision of Reports and Links 13
4. Tags 13
5. Production Services 14
6. Report and Tag requirements 15
7. Changes to Broadcasting Schedule 16
8. Clearance of Reports and Tags 17
9. Payments 17
9.1. Payment of Tag Broadcast Fee and Production Fee 17
9.2. Broadcaster's Statement 17
9.3. Payment of amounts 18
9.4. Resolution of disputes 18
9.5. Dispute resolution procedure 18
10. Restriction 19
11. Intellectual Property Rights 19
11.1. The Reports 19
11.2. Third Party Licences 20
11.3. The Tags 21
12. Restraints 21
12.1. Restricted clients 21
12.2. Other stations 22
12.3. Reporting 22
12.4. Non-solicitation of employees 22
12.5. Review of restricted clients 23
13. Acknowledgement and warranties 23
13.1. Broadcaster's acknowledgement 23
13.2. Broadcaster's warranties 23
News report broadcasting agreement / page 2
13.3. ATN warranties 24
14. Termination 24
14.1. Termination 24
14.2. Notification of events 25
14.3. Accrued rights and remedies 25
15. Indemnity and insurance 26
15.1. ATN's indemnity 26
15.2. Broadcaster's indemnity 26
15.3. Insurance 27
16. Confidential information 27
16.1. Definition 27
16.2. Use and disclosure 27
16.3. Permitted disclosure 28
16.4. Recipient's obligations 28
16.5. Disclosure law 28
17. Dispute resolution 29
17.1. No arbitration or court proceedings 29
17.2. Notification 29
17.3. Parties to resolve Dispute 29
17.4. Appointment of mediator 29
17.5. Role of mediator 29
17.6. Confidentiality 29
17.7. Costs 30
17.8. Termination of process 30
17.9. Breach of this clause 30
18. Notices and other communications 30
18.1. Service of notices 30
18.2. Effective on receipt 30
19. Force majeure 31
20. Goods And Services Tax 31
20.1. Consideration does not include GST 31
20.2. Gross up of consideration 31
20.3. Reimbursements 31
20.4. Tax invoices 31
20.5. Adjustments 32
20.6. Interpretation 32
20.7. Non-monetary consideration 32
21. Relationship 33
22. Governing law and jurisdiction 33
23. Counterparts 33
24. Alteration 33
25. Assignment 33
26. Costs 33
27. Entire agreement 33
News report broadcasting agreement / page 3
Schedule 1 - Item registry 34
Schedule 2 - Stations 35
Schedule 3 - Production Fee and Tag Broadcast Fee 36
Schedule 4 - Broadcasting Specifications. 39
Schedule 5 - Production Resources 42
Schedule 6 - Tag Fee Percentages 44
Schedule 7 - Broadcasting Schedule 45
Schedule 8 - Restricted Clients 46
Schedule 9 - Restricted Days and Restricted Broadcasting Schedule 47
Signing page 49
News report broadcasting agreement / page 4
DETAILS
DATE 2005
PARTIES
Name THE AUSTRALIAN TRAFFIC NETWORK PTY LIMITED ACN 078 993 736
ABN 53 078 993 736
Short form name ATN
Notice details Xxxxx 00,000 Xxxxxx Xxxxxx Xxxxxx XXX 0000
Xxxxxxx Xxx
Name AUSTEREO PTY LIMITED ACN 007 914 641
ABN 85 007 914 641
Short form name BROADCASTER
Notice details 000 Xxxxxx Xxxxxx, Xxxxx Xxxxxxxx XXX 0000
Xxxxxxx Xxxxxxxx
BACKGROUND
A The Broadcaster is the licensee and operator of the Stations.
B The Broadcaster has requested ATN, and ATN has agreed, to provide the
Reports and the Links for the News Bulletins and pay the Tag Broadcast Fee
and the Production Fee on the terms of this agreement.
C ATN has requested, and the Broadcaster has agreed, to broadcast the Tags
and provide access to the Production Resources on the terms of this
agreement.
News report broadcasting agreement / page 5
AGREED TERMS
1. DEFINED TERMS & INTERPRETATION
1.1. Defined terms
In this Agreement:
BROADCAST TIME means an individual broadcast time for a News Bulletin
included in either the Broadcasting Schedule or Restricted Broadcasting
Schedule.
BROADCASTER IP means the Intellectual Property Rights in Reports.
BROADCASTER'S STATEMENT has the meaning given in clause 9.2.
BROADCASTING REGULATIONS means the BSA and the CRA Codes.
BROADCASTING SCHEDULE means those daily times for broadcasting News
Bulletins containing Reports as set out in Schedule 7 and also the
timeframes for broadcasting daily brief news updates (not being News
Bulletins) as set out in Schedule 7.
BROADCASTING SPECIFICATIONS means the Tag Specifications together with the
Report Specifications.
BSA means the Broadcasting Services Xxx 0000 (Cth).
BUSINESS DAY means a day that is not a Saturday, Sunday, public holiday or
bank holiday in South Australia.
CATEGORY A CLIENTS means those persons set out at item 1 of Schedule 8, as
reviewed and amended in accordance with clause 12.5.
CATEGORY B CLIENTS means those persons set out at item 2 of Schedule 8, as
reviewed and amended in accordance with clause 12.5.
COMMENCEMENT DATE means the date set out at item 1 of Schedule l.
CRA CODES means the Commercial Radio Australia Codes of Practice and any
Commercial Radio Standards endorsed or applied (as the case may be) by the
Australian Broadcasting Authority pursuant to the BSA.
END DATE means the date set out at item 2 of Schedule 1.
FORCE MAJEURE means acts of God, fire, unavoidable accident, acts of war,
(declared or undeclared) laws, rules, regulations and orders of any
Government or Government Agency, emergency broadcast or other broadcast
requirements under CRA Codes or as a result of government requirements,
strikes, walkouts, lockouts and other disturbances, delays in
transportation, floods, storms and other natural disturbances, the failure
or destruction of any technical equipment, weather or flying conditions,
and other matters
News report broadcasting agreement / page 6
beyond the control of, or not reasonably foreseeable to the party concerned
whether or not similar to those enumerated.
INDEPENDENT ACCOUNTANT means a person who is expert and prominent in the
subject matter for which he is appointed and who is appointed jointly by
the parties, or if they do not agree on the person to be appointed within
seven days of any party requesting appointment, a chartered accountant
appointed by the Regional Manager New South Wales branch of The Institute
of Chartered Accountants in Australia at the request of either party.
INTELLECTUAL PROPERTY RIGHTS means all intellectual property rights,
including but not limited to:
(a) patents, copyright, know-how, trade secrets, rights in circuit
layouts, registered designs, trade marks and the right to have
confidential information kept confidential; and
(b) any application or right to apply for registration of any of the
rights referred to in paragraph (a).
LINKS means News Bulletins introductions and conclusions, and links which
would customarily appear between any Reports..
MARKETS means the Broadcast Areas of Sydney, Melbourne, Brisbane, Adelaide
and Perth.
NEWS BULLETIN means a radio news bulletin, of a duration determined in
accordance with clause 3.1(c), in accordance with the News Format which
comprises individual news stories, commentary, sound bites and, at the
discretion of the Broadcaster, Reports including those relating to sport
and weather and Links and any other material.
NEWS FORMAT means the news guidelines as to format, style and feel
developed by the Broadcaster and notified to ATN from time to time in
writing.
NEWS INFORMATION means information regarding current events, recent events,
newsworthy events and current affairs likely to be of interest to
Broadcaster's target listeners in the Markets and also includes sport and
weather information.
PERSONALITY means a recognised voice, characterisation or personality.
PRODUCTION SERVICES means the provision of the Production Resources as
required by clause 5.
PRODUCTION RESOURCES means at the Commencement Date the resources specified
in Schedule 5, together with any other resources that are used by the
Broadcaster exclusively for production of News Bulletins for the Stations
immediately prior to the execution of this Agreement and in possession of
the Broadcaster and during the Term
News report broadcasting agreement / page 7
means those production resources required to be maintained by the
Broadcaster under clause 5 (c).
PRODUCTION FEE means the amount set out at item 3 of Schedule 1 but
calculated in accordance with Schedule 3.
RELATED BODY CORPORATE has the same meaning as that term in the
Corporations Xxx 0000.
REPORTS means individual radio news bulletin stories containing News
Information in accordance with the Report Specifications, the News Format
and the Broadcasting Specifications
REPORT SPECIFICATIONS means those specifications regarding the Reports set
out at item 2 of Schedule 4.
RESTRICTED BROADCASTING SCHEDULE means those daily times for broadcasting
the Reports on the Restricted Days as set out in Item 2 of Schedule 9.
RESTRICTED DAYS means those days set out in Item 1 of Schedule 9.
STATIONS means the radio stations controlled or operated by the Broadcaster
set out in Schedule 2.
TAG means a ten second advertising or sponsorship tag or statement provided
by ATN to the Broadcaster in accordance with clause 4(a) for each Broadcast
Time and in accordance with the Broadcasting Specifications.
TAG BROADCAST FEE means the amount set out at item 4 of Schedule 1 but
calculated in accordance with Schedule 3.
TAG SPECIFICATIONS means those specifications set out at item 1 of Schedule
4.
TERM means the period commencing on the Commencement Date and ending at 5pm
on the End Date.
1.2. INTERPRETATION
In this agreement, except where the context otherwise requires:
(a) the singular includes the plural and vice versa, and a gender includes
other genders;
(b) another grammatical form of a defined word or expression has a
corresponding meaning;
(c) a reference to a clause, paragraph, schedule or annexure is to a
clause or paragraph of, or schedule or annexure to, this agreement,
and a reference to this agreement includes any schedule or annexure;
News report broadcasting agreement / page 8
(d) a reference to a document or instrument includes the document or
instrument as novated, altered, supplemented or replaced from time to
time;
(e) a reference to A$, $A, DOLLAR or $ is to Australian currency;
(f) a reference to time is to Sydney, Australia time;
(g) a reference to a party is to a party to this agreement, and a
reference to a party to a document includes the party's executors,
administrators, successors and permitted assigns and substitutes;
(h) a reference to a person includes a natural person, partnership, body
corporate, association, governmental or local authority or agency or
other entity;
(i) a reference to a statute, ordinance, code or other law includes
regulations and other instruments under it and consolidations,
amendments, re-enactments or replacements of any of them;
(j) a word or expression defined in the Corporations Act has the meaning
given to it in the Corporations Act;
(k) the meaning of general words is not limited by specific examples
introduced by INCLUDING, FOR EXAMPLE or similar expressions;
(l) any agreement, representation, warranty or indemnity by two or more
parties (including where two or more persons are included in the same
defined term) binds them jointly and severally;
(m) any agreement, representation, warranty or indemnity in favour of two
or more parties (including where two or more persons are included in
the same defined term) is for the benefit of them jointly and
severally;
(n) a rule of construction does not apply to the disadvantage of a party
because the party was responsible for the preparation of this
agreement or any part of it; and
(o) if a day on or by which an obligation must be performed or an event
must occur is not a Business Day, the obligation must be performed or
the event must occur on or by the next Business Day.
1.3. HEADINGS
Headings are for ease of reference only and do not affect interpretation.
2. Term
This term of this agreement shall commence on the Commencement Date and end
at 7pm on the End Date unless terminated earlier in accordance with this
agreement.
News report broadcasting agreement / page 9
3. Reports
3.1. PROVISION OF REPORTS
(a) ATN agrees to provide to the Broadcaster for each Station the Reports
and the Links in accordance with this agreement, the Broadcasting
Specifications, the News Format and the Broadcasting Schedule during
the Term.
(b) ATN agrees to notify the Broadcaster of any News Information not
included in the Reports of which it becomes aware and is, in its
opinion, of sufficient relevance and importance to warrant
broadcasting.
(c) ATN agrees to provide to the Broadcaster for each Station new Reports
and relevant Links in respect of each Broadcast Time of not less than
the total duration specified by the Broadcaster from time to time as
the length of the News Bulletin for the relevant Broadcast Time in a
manner and format adequate and appropriate for all aspects of a News
Bulletin to be broadcast at the relevant Broadcast Time and also news
Reports and relevant Links sufficient for news updates including
random updates (not being scheduled News Bulletins) in the numbers and
within the timeframes for news updates set out in the Broadcast
Schedule.
(d) The Reports shall be current and shall, as far as is reasonably
practicable, represent the latest information available at the time of
provision of the Report.
3.2. METHOD OF PROVISION OF REPORTS
(a) ATN must provide the Reports and the Links at the election of the
Broadcaster in relation to each Station either:
(i) by live feed directly to the Broadcaster at the time stated in
the Broadcasting Schedule and in a format compatible with the
broadcasting system and technology used by the Broadcaster;
(ii) in recorded format (compatible with the broadcasting system and
technology used by the Broadcaster), in which case ATN must
deliver the Reports to the Broadcaster a reasonable amount of
time prior to the relevant time stated in the Broadcasting
Schedule, as directed by the Broadcaster; or
(iii) as described in 3.2(a)(ii) in a manner that is not compatible
with the broadcasting systems and technology used by the
Broadcaster, provided that
(A) ATN provides the Broadcaster with such equipment that is
necessary to make the format compatible with the
Broadcaster's broadcasting system and technology at its own
cost; and
News report broadcasting agreement / page 10
(B) the Broadcaster provides its consent, which must not be
unreasonably withheld.
(b) The Broadcaster may direct ATN in writing no later than 7 days prior
to the relevant time stated in the Broadcasting Schedule, that ATN is
to provide the Reports for a Station in accordance with either clause
3.2(a)(i) or 3.2(a)(ii), such direction to remain in force until such
time as the Broadcaster provides ATN with a subsequent direction for
that Station.
(c) In the absence of any direction by the Broadcaster for any Station,
the Reports for that Station shall be provided in accordance with
clause 3.2(a)(i).
(d) To ensure that the Broadcaster is able to exercise its right to select
and edit Reports ATN shall allow the Broadcaster real time access to
the system used to create the Reports including any equipment
necessary to view the Reports as they are being prepared.
(e) All Reports and Links must be delivered in a format which enables the
Broadcaster to select, edit and/or reformat the Reports and Links at
its discretion prior to Broadcast by the Broadcaster.
3.3. BROADCASTING OF REPORTS
(a) The Broadcaster shall be entitled to broadcast at its discretion the
whole or part of each of the Reports on the Stations during any News
Bulletin (or news update not being a scheduled News Bulletin)
broadcast in accordance with the Broadcasting Schedule during the Term
and at any time for a period of 30 days after the delivery of each
Report.
(b) ATN acknowledges and agrees that nothing in this agreement shall in
any way preclude or limit the Broadcaster from sourcing other reports,
news items or other material of any nature whatsoever from third
parties or otherwise, and broadcasting that material within any
Broadcast Time including during any News Bulletin.
3.4. ADDITIONAL REPORTS
(a) At the request of the Broadcaster, ATN may agree to provide additional
Reports beyond those stated in the Broadcasting Schedule at its own
cost, the timing and frequency of which shall, subject to paragraph
(b) of this clause be agreed between the parties at least 30 days in
advance.
(b) At the request of the Broadcaster, ATN shall use best endeavours to
provide additional Reports and Links for a Market on the occurrence of
any:
(i) emergency, or
(ii) natural disaster, or
News report broadcasting agreement / page 11
(iii) election of any Government, or
(iv) commencement of hostilities or war; or
(v) other incident or event warranting, by itself, additional
Broadcast Times of Reports,
affecting the Market or of relevance to the target audience of a
Station. The timing and frequency of the additional Reports and Links
to be provided under this clause shall be as reasonably required by
the Broadcaster.
(c) Notwithstanding anything else in this agreement, ATN will supply such
Reports as the Broadcaster would require to fulfil the Broadcasters
obligations under any Broadcasting Regulation, including any
requirement relating to emergency broadcasts, and ATN will ensure that
any procedure necessary to fulfil that obligation is in place and is
followed.
(d) The Broadcaster will give as much notice as reasonably practicable of
a request for additional Reports under clauses 3.4(b) and ATN's
obligations to provide those Reports is conditional on such notice
being given.
(e) The Broadcaster will give as much notice as is reasonably practicable
of a request for additional Reports under clause 3.4 (c) but it is
acknowledged that an emergency broadcast requirement may arise without
opportunity for notice and that ATN may therefore need to commence
some emergency Report preparation or information gathering before the
Broadcaster can either notify or discuss any additional Report
planning.
(f) ATN shall notify the Broadcaster forthwith upon becoming aware of a
highly newsworthy event or emergency that is likely to give rise to a
request under Clause 3.4(b) or 3.4 (c).
(g) Once a notice is provided under paragraph (d),(e) or (f) of this
clause the parties shall promptly discuss the report requirements of
the Broadcaster to enable planning of the additional Reports schedule.
(h) In respect of additional Reports provided under this clause 3.4 the
Broadcaster agrees to
(i) except in the case of reports also required under clause 3.4 (c)
broadcast an additional Tag in respect of each additional
Broadcast Time of a News Bulletin containing such additional
Reports; and
(ii) provide the Production Services in respect of those additional
Reports including any required under clause 3.4 (c), at no
additional cost to ATN.
News report broadcasting agreement / page 12
(i) It is acknowledged that additional Reports that are broadcast will not
always be broadcast as part of a News Bulletin as their placement will
depend upon the nature of the reason for the additional Reports.
3.5. RESTRICTED DAYS
On the Restricted Days, ATN shall provide the Reports, and the Broadcaster
shall broadcast, the Tags in accordance with the Restricted Broadcasting
Schedule, but otherwise in accordance with this agreement.
3.6. DEFAULT IN PROVISION OF REPORTS AND LINKS
If at any time ATN fails to provide the Reports and the Links for two
consecutive Broadcast Times the Broadcaster shall be entitled to produce
all Reports and Links until ATN shall show to the reasonable satisfaction
of the Broadcaster that ATN is able to resume supply of the Reports and
Links, and ATN will pay any cost and expense of the Broadcaster so doing.
4. Tags
(a) In consideration of payment by ATN of the Tag Broadcast Fee under
clause 9, and subject to:
(i) the Tags complying with the Tag Specifications and the
requirements of clause 6, and
(ii) the supply by ATN to the Broadcaster of the Reports and Links,
the Broadcaster shall broadcast one Tag, at its own cost, for each
Broadcast Time and on each Station in accordance with this clause.
(b) ATN must provide Tags to the Broadcaster prior to, or at the same time
as, it provides the Reports in relation to each Broadcast Time. If ATN
provides Tags prior to the Reports for a particular Broadcast Time,
then ATN shall specify which Tag is to be broadcast at which Broadcast
Time.
(c) Provided a Tag is provided to the Broadcaster in accordance with this
clause, the Broadcaster must broadcast the Tag at or in close
proximity to the Broadcast Time to which it relates for each Station.
(d) ATN must ensure that each Tag must be in accordance with the Tag
Specifications.
(e) ATN shall provide with each Tag its recommended and preferred
placement of such Tag within the relevant Broadcast Time, however the
location of the Tags within each Broadcast Time will be determined by
the Broadcaster at its discretion.
News report broadcasting agreement / page 13
(f) If the Broadcaster fails to broadcast any Tag as required under this
agreement, the Broadcaster must use all reasonable endeavours to
broadcast a replacement Tag at a time proposed by the Broadcaster and
approved by ATN, (which approval will not be unreasonably withheld).
(g) The Broadcaster shall not be required to broadcast a Tag for any
Broadcast Time for which it has not been provided Reports and Links by
ATN.
5. Production Services
(a) Subject to employee contractual, third party and other restrictions,
the Broadcaster agrees to allow ATN reasonable access to the
Production Resources during the Term for the purpose of:
(i) producing the Reports, the Links and the Tags; and
(ii) gathering, researching, obtaining, preparing and summarising the
News Information for the Reports,
(b) Subject to clauses 5(e) and 5(t), the Broadcaster shall use all
reasonable endeavours to ensure that its employees, contractors and
consultants comprising part of the Production Resources cooperate with
ATN in relation to:
(i) producing the Reports, the Links and the Tags;
(ii) gathering, researching, obtaining, preparing and summarising the
News Information for the Reports; and
(iii) any other associated activities reasonably requested by ATN for
the purpose of production of the Reports or the Tags.
(c) The Broadcaster must maintain during the Term the lesser of:
(i) the same level of production resources as the Production
Resources it possesses at the date of execution of this
agreement; or
(ii) such production resources as are reasonably necessary to prepare
and produce the Reports, the Links and the Tags in accordance
with this agreement,
(d) A failure by ATN to comply with its obligations under this agreement
does not constitute a breach of this agreement if it was caused wholly
or partly as a result of a failure by the Broadcaster to provide the
Production Services in accordance with its obligations under this
Agreement.
(e) ATN acknowledges and undertakes that employees of the Broadcaster who
may form part of the Production Resources shall at all times be
treated consistently with their employment contract or agreement so as
not to trigger any termination
News report broadcasting agreement / page 14
right on the part of the relevant employee and that nothing in this
agreement will require the Broadcaster to act in any manner
inconsistent with that employment contract.
(f) ATN shall fully consult with the Broadcaster's nominated
representative in relation to any employment related issue concerning
an employee of Austereo whose services comprise part of the Production
Resources with a view to reaching an agreed outcome based on the
principle that no employee forming part of the Production Resources
shall be treated inconsistently with the customary human resources and
employment policies of the Broadcaster.
(g) ATN will not seek to influence directly or indirectly the selection of
topics for or material contained in Reports or Links or News
Information based on or in furtherance of any commercial or other
benefit to ATN.
(h) ATN will at all times during the Term provide a qualified senior
journalist having substantial experience as manager of commercial
radio journalists, as a contact person for ATN all matters or things
that arise in relation to the provision of the Reports and Links and
who will be available to and will consult with the Broadcaster
relating to the manner and subject matter for communication with any
employee of the Broadcaster whose resources are made available as part
of the Production Resources.
(i) Should ATN notify the Broadcaster that ATN desires to produce the
Reports and Links for a Market from a location other than their
location in that Market at the commencement of this agreement, then
the parties will expeditiously enter into good faith discussions to
endeavour to facilitate the availability of such of the Broadcaster's
Production Resources as may reasonably be relocated. It is
acknowledged that the basis of such discussions will be that the
Broadcaster will not be required to bear any additional expense as a
result of any agreed relocation of Production Resources.
6. Report and Tag requirements
(a) The Reports and the Tags and the Links shall, and ATN hereby warrants
that the Reports and Tags and publication of them shall:
(i) comply with the Broadcasting Regulations;
(ii) comply with the Broadcasting Specifications;
(iii) not be in breach of the Trade Practices Act or any fair trading
legislation or regulation;
(iv) not be in breach of any privacy regulation or code;
(v) not be in breach of any other law or regulation;
News report broadcasting agreement / page 15
(vi) not be in breach of any advertising or broadcasting industry code
or industry agreement;
(vii) to the best of ATM's knowledge and belief (applying best
industry practice due diligence) not breach the Intellectual
Property Rights of any person;
(viii) not contain anything that may reasonably be considered likely
to cause offence;
(ix) not be reasonably likely to diminish the reputation or goodwill
of the Broadcaster by virtue of:
(A) the reputation or character of any persons or products
associated with them; or
(B) any controversial information contained within them; or
(C) any other reason whatsoever;
(x) not contain anything that might promote a radio competitor of the
Broadcaster;
(xi) be of a quality reasonably expected of a person holding himself
out as being capable of producing the Reports or the Tags and of
no lesser quality than those produced by the Broadcaster
immediately prior to this agreement,
except to the extent that the failure of the Reports or Tags to comply
with this clause is caused by changes to them by the Broadcaster.
(b) ATN acknowledges and agrees that notwithstanding the foregoing the
Broadcaster shall not be required to broadcast any Tag which in the
Broadcaster's opinion (acting reasonably) is in breach of any of the
requirements of this clause 6 or otherwise in breach of this
agreement.
7. Changes to Broadcasting Schedule
(a) The parties acknowledge that it may be necessary to make amendments to
the Broadcasting Schedule from time to time.
(b) The Broadcaster may, by serving notice on the other party at least 30
days in advance, notify ATN of a change to the Broadcasting Schedule,
provided that:
(i) the total number of Tags broadcast is not decreased;
(ii) the total number of Reports broadcast is not increased except in
accordance with clause 3.4; and
News report broadcasting agreement / page 16
(iii) the Broadcaster must ensure that the Tags are broadcast at times
no less favourable to ATN than those times specified in the
Broadcasting Schedule, unless agreed to by ATN.
(c) Unless specifically provided for in this agreement, no amendments to
the Broadcasting Schedule shall have the result that the total number
of Tags broadcast is reduced. Where broadcasts of Reports are removed
from the Broadcasting Schedule, the parties must negotiate a
replacement broadcast in good faith. Any additional broadcasts shall
be in accordance with clause 3.4.
8. Clearance of Reports and Tags
(a) The Broadcaster may edit, or request ATN to edit; any Reports or Tags
that it reasonably considers are or might be in breach of clause 4.
(b) Where the Broadcaster receives a notice claim or demand by a third
party in relation to any Tag it will be entitled, at its discretion,
not to continue to broadcast that Tag until such time as there is an
opportunity to investigate the claim or demand and make arrangements,
where appropriate, for an edited or replacement Report, Tag or Link.
(c) The Broadcaster agrees to use reasonable endeavours to consult with
ATN prior to editing any Tags, (where there is sufficient time to
broadcast deadline) and the parties agree to use reasonable endeavours
to negotiate any changes in good faith but the Broadcaster shall have
final rights in relation to control of broadcast content and will
therefore have the capacity to edit a Report, Link or Tag.
9. Payments
9.1. PAYMENT OF TAG BROADCAST FEE AND PRODUCTION FEE
ATN must pay the Broadcaster the Production Fee and the Tag Broadcast Fee
in accordance with this clause 9.
9.2. BROADCASTER'S STATEMENT
Within 5 Business Days of the end of each month, the Broadcaster must
provide ATN with a written statement (Broadcaster's Statement) setting out
for that month:
(a) the total number of News Bulletins in which Reports appeared,
(b) the total number of Tags that were broadcast;
(c) the total number of Tags that were scheduled to be broadcast in
accordance with the Broadcasting Schedule;
(d) any difference between the items stated at 9.2(c) and 9.2(c) above;
News report broadcasting agreement / page 17
(e) details of any Tags that were broadcast at times other than as stated
in the Broadcasting Schedule;
(f) details of any periods during which the Production Resources were
unavailable to ATN; and
(g) the amount of the Tag Broadcast Fee and the Production Fee to which,
in the Broadcaster's opinion, the Broadcaster is entitled for the
month, taking into account any adjustments as required by Schedule 3.
9.3. PAYMENT OF AMOUNTS
(a) Within 30 days of receiving the Broadcaster's Statement, ATN must:
(i) pay to the Broadcaster the amount set out in the Broadcaster's
Statement; or
(ii) give the Broadcaster a notice stating that it does not agree with
the Broadcaster's Statement, and the following:
(A) the matters in respect of which it disagrees with the
Broadcaster's Statement; and
(B) the grounds on which it disagrees with the Broadcaster's
Statement.
(b) If ATN delivers the notice referred to in clause 9.3(a)(ii), then it
must pay the amount set out in the Broadcaster's Statement, less any
amounts disputed, within five Business Days after giving the notice
under clause 93(a)(ii).
(c) If ATN makes a payment under this agreement, that fact shall not
constitute agreement by ATN of the accuracy of anything contained in
the Broadcaster's Statement.
9.4. RESOLUTION OF DISPUTES
If a matter of disagreement under clause 9.3 is not resolved within five
Business Days of delivery of the notice by ATN under clause 9.3(a)(ii),
then either ATN or the Broadcaster may refer the matter of disagreement for
resolution to an Independent Accountant.
9.5. DISPUTE RESOLUTION PROCEDURE
(a) Any disputed matter referred to the Independent Accountant must be
resolved in accordance with the procedures set out in this clause.
(b) The disputed matters must be referred to the Independent Accountant by
written submission which must include copies of documents relevant to
the dispute and reference to the relevant provisions of this
agreement.
News report broadcasting agreement / page 18
(c) The Independent Accountant must be instructed to finish its
determination as soon as practicable and in any event no later than 10
Business Days after its appointment (or other period agreed by the
parties).
(d) The parties must promptly supply the Independent Accountant with any
information, assistance and cooperation requested in writing by it in
connection with its determination. All correspondence between the
Independent Accountant and a party must be copied to the other party.
(e) The Independent Accountant determines the procedures for settlement of
the disputed matter.
(f) The Independent Accountant acts as an independent expert and not an
arbitrator. The Independent Accountant's decision will be conclusive,
final and binding on the Parties (except in the case of manifest
error).
(g) The costs of the Independent Accountant will be paid as determined by
the Independent Accountant having regard to the relative position of
the parties on the disagreement.
10. Restriction
The Broadcaster must not, except as authorised by this Agreement, without
the prior written consent of ATN:
(a) broadcast the Reports or the Tags on any other terrestrial radio
stations, or in any other manner; or
(b) provide or sell the Reports or the Tags to any other person, or
authorise any other person to broadcast them.
11. Intellectual Property Rights
11.1. THE REPORTS
(a) Subject to third party rights, ATN acknowledges that the Broadcaster
owns all Intellectual Property Rights in the Reports and the Links
produced by ATN utilising the Production Resources under this
agreement.
(b) The Broadcaster hereby grants to ATN an irrevocable, exclusive,
royalty free licence for the duration of this agreement and for a
further two weeks thereafter to do the following:
(i) subject to third party rights, licence, sell or otherwise
distribute all such Reports for terrestrial radio broadcast in
markets other than the Markets;
(ii) subject to third party rights, licence, sell or otherwise
distribute all such reports for terrestrial radio broadcast in
metropolitan markets provided
News report broadcasting agreement / page 19
that the Broadcaster's prior written consent must be obtained
(which may be withheld in its absolute discretion) if the Report
or Reports are presented by an employee or Personality of the
Broadcaster;
(iii) use, sell, licence or otherwise distribute the following, for
its own use, or to third parties on such terms as it decides:
(A) any News Information prepared, summarised or used in the
Reports, including any notes, summaries or documents
relating to the same;
(B) news reports, whether audio or audio and visual, containing
information similar or identical to information contained in
the Reports;
(C) any script prepared in relation to the Reports,
but excluding any audio recording of the broadcast of the Reports
(unless allowed pursuant to clauses 11.1(b)(i) or 11.1(b)(ii).
(c) Notwithstanding anything in this agreement it is expressly agreed that
the Broadcaster shall be entitled at any time to use, display,
transmit, licence, sell and otherwise make available any of
(i) the News Information prepared summarised or used in the Reports,
(ii) the Links and the Reports and/or audio or text material from the
Reports
(iii) any scripts prepared in relation to the Reports
(collectively "the Material") whether in edited form or not and
whether combined with other material, for the purpose of any medium
(except terrestrial broadcasting for services other than the Stations)
including a wireless, mobile, on-line, internet, or satellite medium
and whether as part of a multi-media portal or otherwise and the
Broadcaster shall be entitled to do all acts and things reasonably
necessary in furtherance of its rights under this clause including the
entering into of arrangements with third parties on any terms it sees
fit for the distribution of the Material or any part of the Material.
11.2. THIRD PARTY LICENCES
ATN will be responsible for obtaining all third party licences in respect
of any components of the Reports sourced by the Broadcaster or ATN from a
third party it being acknowledged that the Broadcaster's licenses for feeds
and other sources of material forming part of the resources are or may be
licenses restricted to permitting broadcast on the Stations.
News report broadcasting agreement / page 20
11.3. THE TAGS
(a) The Broadcaster acknowledges that ATN owns all Intellectual Property
Rights in the Tags provided by ATN to the Broadcaster under this
agreement.
(b) Subject to paragraph (d) the Broadcaster agrees not to provide or sell
the Tags or any of the information contained in the Tags to any other
person without the prior written consent of ATN.
(c) The Broadcaster may provide the Tags or any of them to a third party
in compliance with any statutory or regulatory requirement or in
relation to any scheme or contractual obligation for the purpose of
demonstrating accountability of the Broadcaster of placement of any
material contracted to be broadcast for or on behalf of a third party.
(d) ATN must not sell, licence or otherwise distribute to any other person
or station in competition with the Broadcaster any Tag which is
presented by an employee or Personality of the Broadcaster without the
prior written consent of the Broadcaster.
12. Restraints
12.1. RESTRICTED CLIENTS
ATN may approach any persons to sell the Tags for profit, except that:
(a) ATN shall not approach or seek to elicit business from Category A
Clients for the purpose of selling the Tags on the Stations without
the consent of the Broadcaster which may be withheld for any reason;
(b) ATN shall not approach or seek to elicit business from Category B
Clients for the purpose of selling the Tags on the Stations without
the consent of the Broadcaster, which consent may only be withheld if,
in the reasonable opinion of the Broadcaster, ATN's actions would
result in the Category B Client:
(i) ceasing to be a customer of the Broadcaster's advertising
business; or
(ii) materially reducing the aggregate amount it spends in respect of
advertising on the Stations on an annual basis; and
(c) ATN shall, at the written request of the Broadcaster, suspend, or
refrain from engaging any discussions or negotiations (SUSPENDED
ACTIVITIES) with any customer to sell the Tags on the Stations for a
period not to exceed 20 Business Days (at which time ATN is entitled
to commence or resume the Suspended Activities), if:
News report broadcasting agreement / page 21
(i) the Broadcaster is engaged in discussions or negotiations to
provide broadcasting or advertising services to that customer;
and
(ii) the Broadcaster reasonably considers that the Suspended
Activities are likely to detrimentally prejudice those
discussions or negotiations.
12.2. OTHER STATIONS
Nothing in clause 12.1 shall prevent ATN from:
(a) approaching or seeking to elicit business from Category A Clients or
Category B Clients so long as ATN does not do so for the purpose of
selling the Tags on the Stations or
(b) approaching or seeking to elicit business from Category B Clients if,
prior to the date of this agreement, ATN had arrangements with those
persons for provision of broadcast of tags similar to the Tags.
12.3. REPORTING
On the first day of each week during the Term, ATN will provide the
Broadcaster with a report providing details of the names of any entities
with whom ATN has had discussions regarding the Tags during the seven days
ending on the date of the report.
12.4. NON-SOLICITATION OF EMPLOYEES
(a) The Broadcaster may not during the Term, and for a period of ninety
(90) days from the termination of this agreement, solicit, canvass,
or approach a person who was at any time during the Term an employee
of ATN with a view to inducing or encouraging them to leave their
employment with ATN provided however that this clause shall not apply
in respect of any person who:
(i) has at any time been an employee or contractor of the
Broadcaster, or any Related Body Corporate of the Broadcaster;
and
(ii) has been employed by ATN, or any Relaxed Body Corporate of ATN,
for a period of less than twelve months.
For the purposes of this clause ATN shall be deemed not to be a
Related Body Corporate of the Broadcaster during the Term.
(b) ATN may not during the Term, and for a period of ninety (90) days from
the termination of this agreement solicit canvass or approach a person
who was at any time during the Term an employee of the Broadcaster
with a view to inducing or encouraging them to leave their employment
with ATN provided however that this clause shall not apply in respect
of any person who:
News report broadcasting agreement / page 22
(i) has at any time been an employee or contractor of ATN, or any
Related Body Corporate of ATN; and
(ii) has been employed by the Broadcaster for a period of less than
twelve months.
12.5. REVIEW OF RESTRICTED CLIENTS
Within 10 Business Days of the first anniversary of this agreement, and at
the end of each 12 month period thereafter, the parties shall review the
persons listed as Category A Clients and Category B Clients in Schedule 8
of this agreement, and shall negotiate amendments to that schedule in good
faith. Any amendments to Category A Clients and Category B Clients agreed
by the parties pursuant to this clause shall take effect as at the date
such agreement is reached.
13. Acknowledgement and warranties
13.1. BROADCASTER'S ACKNOWLEDGEMENT
Subject to clause 12, the Broadcaster acknowledges and agrees that:
(a) ATN may receive payment from other persons in respect of the Tags;
(b) subject to this agreement the Tags may endorse a person or a product
of a person;
(c) subject to this agreement, ATN is entitled to contract with any
persons on any terms it considers appropriate in respect of the
content of the Tags; and
(d) the Broadcaster has no direct entitlement to any monies or other
consideration received by ATN in respect of the Tags and the
Broadcaster's payment in respect of the Tags is as set out in this
Agreement.
13.2. BROADCASTER'S WARRANTIES
The Broadcaster warrants that:
(a) it has the capacity to enter into this agreement and broadcast the
Reports and the Tags on the Stations;
(b) it has the authority to direct each of the Stations to comply with
this agreement;
(c) this agreement will not cause it to be in breach of any other
agreement or law that may entitle another person to apply for
injunctive relieve to prevent the Broadcaster from complying with its
obligations under this agreement; and
(d) at the date of this agreement it is capable of, and has the power to,
provide the Production Services on the terms of this agreement without
being in breach of any agreement or law.
News report broadcasting agreement / page 23
13.3. ATN WARRANTIES
ATN warrants that:
(a) it has capacity to enter into this agreement and do all things
necessary to comply with its obligations under the terms of thus
agreement;
(b) this Agreement will not cause it to be in breach of any other
agreement that may entitle another person to apply for injunctive
relieve to prevent the Broadcaster from complying with its obligations
under this agreement.
14. Termination
14.1. TERMINATION
(a) A party may terminate this agreement with immediate effect by giving
notice to the other party if:
(i) that other party breaches any provision of this agreement and
fails to remedy the breach within 30 days after receiving notice
requiring it to do so; or
(ii) that other party breaches a material provision of this agreement
where that breach is not capable of remedy; or
(iii) any event referred to in clause 14.2 happens to that other
party.
(b) The Broadcaster may terminate this agreement with immediate effect by
giving notice to ATN if:
(i) ATN fails to provide the Broadcaster with any Reports for a
continuous period of 36 hours;
(ii) ATN fails to provide Reports required for any Station for at
least 5% of the Broadcast Times in the Broadcast Schedule over
any 2 month period (excluding any failure as a result of any
failure by the Broadcaster to provide the Production Resources),
except where ATN's failure is caused by a failure of the Broadcaster
to comply with its obligations under this agreement.
(c) ATN may terminate this agreement with immediate effect by giving
notice to the Broadcaster if the Broadcaster fails to broadcast any
Tags required for any Station for at least 5% of the Broadest Times in
any calendar month except where the Broadcaster's failure is caused by
a failure of ATN to comply with its obligations under this clause and
except where replacement Tags have been broadcast in accordance with
this agreement..
News report broadcasting agreement / page 24
(d) The Broadcaster may terminate the provision and broadcasting of the
Reports under Agreement at any time by the provision of 90 days
written notice to ATN. If the Broadcaster does so under this clause
(i) the Broadcaster must continue to broadcast the Tags on the
Broadcast Times (or at other times agreed between the parties) at
its own cost for 12 months from date of termination or for the
remainder of the Term, whichever is shorter and ATN must continue
to supply the Tags for that period;
(ii) ATN must continue to pay the Tag Broadcast Fee in respect of the
period in paragraph (c) (i);
(iii) ATN is not required to pay the Production Fee from the date of
termination; and
(iv) the obligations of both parties in respect of the Reports and the
Links cease.
14.2. NOTIFICATION OF EVENTS
Each party must notify the other party immediately if:
(a) that party disposes of the whole or part of its assets, operations or
business other than in the ordinary course of business;
(b) that party ceases to carry on business;
(c) that party ceases to be able to pay its debts as they become due;
(d) any step is taken by a mortgagee to take possession or dispose of the
whole or part of that party's assets, operations or business; or
(e) any step is taken to enter into any arrangement between that party and
its creditors;
(f) any step is taken to appoint a receiver, a receiver and manager, a
trustee in bankruptcy, a provisional liquidator, a liquidator, an
administrator or other like person of the whole or part of that
party's assets, operations or business; or
(g) where that party is a partnership, any step is taken to dissolve that
partnership.
14.3. ACCRUED RIGHTS AND REMEDIES
(a) Termination of this agreement, does not affect any accrued rights or
remedies of either party, including the right to seek damages at
common law to which a party may be entitled as a result of any breach
or default by the other party giving rise
News report broadcasting agreement / page 25
to a termination including a right of termination under clause 14.1
(a) to (c) inclusive.
(b) Upon termination -
(i) payment of the Tag Broadcast Fee and the Production Fee will
cease, and
(ii) broadcasting of the Tag and the Reports will cease,
without prejudice to the said right to seek damages for termination
under clause 14.1 (a) to (c) inclusive.
15. Indemnity and insurance
15.1. ATN'S INDEMNITY
The Broadcaster must indemnify ATN against all expenses, losses, damages
and costs (on a solicitor and own client basis and whether incurred by or
awarded against ATN) that ATN may sustain or incur as a result, whether
directly or indirectly, of:
(a) any breach of this agreement by the Broadcaster including, but not
limited to, a breach in respect of which ATN exercises an express
right to terminate this agreement;
(b) any loss of or damage to any properly or injury to or death of any
person caused by any negligent act or omission or wilful misconduct of
the Broadcaster or its officers and employees; or
(c) any unauthorised use of the Reports or the Tags.
15.2. BROADCASTER'S INDEMNITY
ATN must indemnify the Broadcaster against all expenses, losses, damages
and costs (on a solicitor and own client basis and whether incurred by or
awarded against the Broadcaster) that the Broadcaster may sustain or incur
as a result, whether directly or indirectly, of:
(a) any breach of this agreement by ATN including, but not limited to, a
breach in respect of which the Broadcaster exercises an express right
to terminate this agreement;
(b) any loss of or damage to any property or injury to or death of any
person caused by any negligent act or omission or wilful misconduct of
ATN or its officers and employees; or
(c) any claim arising as a result of the content of the Tags or the
Reports, except to the extent that the same arose wholly or partly as
a result of:
News report broadcasting agreement/page 26
(i) any unauthorised use by the Broadcaster of the Tags or the
Reports;
(ii) directions or requests issued to ATN by the Broadcaster;
(iii) any information provided to ATN by the Broadcaster or its
employees upon which ATN relied (except information or
(iv) any changes made to, or requested in respect of, the Reports or
the Tags by the Broadcaster.
15.3. INSURANCE
(a) Each party must take out, and maintain throughout the Term, valid and
enforceable workers' compensation insurance policies which provide
coverage for at least $5 million for each occurrence.
(b) Each party must take out and maintain throughout the Term a valid and
enforceable insurance policy in respect of defamation with a reputable
and responsible insurer, which provides coverage for at least $1
million for each occurrence.
16. Confidential information
16.1. DEFINITION
(a) Confidential Information of a party (Disclosing Party) means all
information:
(i) treated by the Disclosing Party as confidential; and
(ii) disclosed by the Disclosing Party to the other party or of which
the other party becomes aware, whether before or after the date
of this agreement,
except information:
(iii) the other party creates (whether alone or jointly with any third
person) independently of the Disclosing Party; or
(iv) that is public knowledge (otherwise than as a result of a breach
of confidentiality by the other party or any of its permitted
discloses).
(b) The terms of this Agreement constitute Confidential Information of
both parties under the above definition.
16.2. USE AND DISCLOSURE
Each party (RECIPIENT):
(a) may use Confidential Information of a Disclosing Party only for the
purposes of this agreement; and
News report broadcasting agreement/page 27
(b) must keep confidential all Confidential Information of each Disclosing
Party except:
(i) for disclosures permitted under clause 16.3; and
(ii) to the extent (if any) the Recipient is required by law to
disclose any Confidential Information.
16.3. PERMITTED DISCLOSURE
A Recipient may disclose Confidential Information of a Disclosing Party to
persons who:
(a) have a need to know for the purposes of this agreement (and only to
the extent that each has a need to know); and
(b) before disclosure:
(i) in the case of the Recipient's officers and employees, have been
directed by the Recipient to keep confidential all Confidential
Information of the Disclosing Party; and
(ii) in the case of other persons approved in writing by the
Disclosing Party, have agreed in writing with the Recipient to
comply with substantially the same obligations in respect of
Confidential Information of the Disclosing Party as those imposed
on the Recipient under this agreement,
(each a DIRECTION).
16.4. RECIPIENT'S OBLIGATIONS
A Recipient must:
(a) ensure that each person to whom it discloses Confidential Information
of a Disclosing Party under clause 16.3 complies with its Direction;
and
(b) notify the Disclosing Party of, and take all steps to prevent or stop,
any suspected or actual breach of a Direction.
16.5. DISCLOSURE LAW
If a Recipient is required by law to disclose any Confidential Information
of a Disclosing Party to a third person (including, but not limited to,
government) the Recipient must:
(a) before doing so:
(i) notify the Disclosing Party; and
News report broadcasting agreement / page 28
(ii) give the Disclosing Party a reasonable opportunity to take any
steps that the Disclosing Party considers necessary to protect
the confidentiality of that information; and
(b) notify the third person that the information is confidential
information of the Disclosing Party.
17. Dispute resolution
17.1. NO ARBITRATION OR COURT PROCEEDINGS
(a) If a dispute arises out of this agreement (DISPUTE), a party must
comply with this clause 17 before starting arbitration or court
proceedings (except proceedings for interlocutory relief).
(b) This clause 17 does not apply to disputes required to be resolved in
accordance with clause 9.4.
17.2. NOTIFICATION
A party claiming a Dispute has arisen must give the other parties to the
Dispute notice setting out details of the Dispute.
17.3. PARTIES TO RESOLVE DISPUTE
During the 14 days after a notice is given under clause 17.2 (or longer
period if the parties to the Dispute agree in writing), each party to the
Dispute must use its reasonable efforts to resolve the Dispute. If the
parties cannot resolve the Dispute within that period, they must refer the
Dispute to a mediator if one of them requests.
17.4. APPOINTMENT OF MEDIATOR
If the parties to the Dispute cannot agree on a mediator within seven days
after a request under clause 17.3, the chairman of LEADR or the chairman's
nominee will appoint a mediator.
17.5. ROLE OF MEDIATOR
The role of a mediator is to assist in negotiating a resolution of the
Dispute. A mediator may not make a binding decision on a party to the
Dispute except if the party agrees in writing.
17.6. CONFIDENTIALITY
Any information or documents disclosed by a party under this clause 17:
(a) must be kept confidential; and
(b) may only be used to attempt to resolve the Dispute.
News report broadcasting agreement / page 29
17.7. COSTS
Each party to a Dispute must pay its own costs of complying with this
clause 17. The parties to the Dispute must equally pay the costs of any
mediator.
17.8. TERMINATION OF PROCESS
A party to a Dispute may terminate the dispute resolution process by giving
notice to each other after it has complied with clauses 17.1 to 17.3.
Clauses 17.6 and 17.7 survive termination of the dispute resolution
process.
17.9. BREACH OF THIS CLAUSE
If a party to a Dispute breaches clauses 17.1 to 17.8, the other parties to
the Dispute do not have to comply with those clauses in relation to the
Dispute.
18. Notices and other communications
18.1. SERVICE OF NOTICES
A notice, demand, consent, approval or communication under this agreement
(NOTICE) must be:
(a) in writing, in English and signed by a person duly authorised by the
sender, and
(b) hand delivered or sent by prepaid post or facsimile to the recipient's
address for Notices specified in the Details, as varied by any Notice
given by the recipient to the sender.
18.2. EFFECTIVE ON RECEIPT
A Notice given in accordance with clause 18.1 takes effect when taken to be
received (or at a later time specified in it), and is taken to be received:
(a) if hand delivered, on delivery;
(b) if sent by prepaid post, on the second Business Day after the date of
posting (or on the seventh Business Day after the date of posting if
posted to or from a place outside Australia);
(c) if sent by facsimile, when the sender's facsimile system generates a
message confirming successful transmission of the entire Notice
unless, within eight Business Hours after the transmission, the
recipient informs the sender that it has not received the entire
Notice,
but if the delivery, receipt or transmission is not on a Business Day or is
after 5.00pm on a Business Day, the Notice is taken to be received at
9.00am on the next Business Day.
News report broadcasting agreement / page 30
19. Force majeure
No party is liable for any failure to perform or delay in performing its
obligations under this agreement if that failure or delay is due to a Ford
Majeure event. If that failure or delay exceeds 30 days, the other party
may terminate this agreement with immediate effect by giving notice to the
other party. A party whose performance is affected by Force Majeure will
use all reasonable endeavours to expedite resumption of the relevant
performance failure.
20. Goods And Services Tax
20.1. CONSIDERATION DOES NOT INCLUDE GST
Unless specifically described in this Agreement as 'GST inclusive', any sum
payable (or amount included in the calculation of a sum payable), or
consideration to be provided, under or in accordance with this Agreement
does not include any amount on account of GST.
20.2. GROSS UP OF CONSIDERATION
Where any supply to be made by one party (SUPPLIER) to another party
(RECIPIENT) under or in connection with this Agreement is subject to GST
(other than a supply the consideration for which is specifically described
in this Agreement as 'GST inclusive'):
(a) the consideration payable or to be provided for that supply but for
the application of this clause (GST EXCLUSIVE CONSIDERATION) shall be
increased by, and the Recipient shall pay to the Supplier, an amount
equal to the GST payable by the Supplier in respect of that supply;
and
(b) the Recipient must pay that additional amount at the same time and in
the same manner as the GST Exclusive Consideration payable or to be
provided for that supply.
20.3. REIMBURSEMENTS
If any payment to be made to a party under or in connection with this
Agreement is a reimbursement or indemnification of an expense or other
liability incurred or to be incurred by that party, then the amount of the
payment must be reduced by the amount of any input tax credit to which that
party is entitled for that expense or other liability, such reduction to be
effected before any increase in accordance with clause 20.2.
20.4. TAX INVOICES
The Supplier must issue a tax invoice to the Recipient in respect of any
taxable supply made by the Supplier under or in connection with this
Agreement, such tax invoice to be issued no later than 14 days after the
Supplier receives the consideration for that taxable supply.
News report broadcasting agreement / page 31
20.5. ADJUSTMENTS
If an adjustment event has occurred in respect of a taxable supply made
under or in connection with this Agreement, any party that becomes aware of
the occurrence of that adjustment event must notify each other party to
that taxable supply as soon as practicable, and all of those parties agree
to take whatever steps are necessary (including to issue an adjustment
note), and to make whatever adjustments are required, to ensure that any
GST or additional GST on that taxable supply, or any refund of GST (or part
thereof), is paid no later than 28 days after the Supplier first becomes
aware that the adjustment event has occurred.
20.6. INTERPRETATION
A word or expression used in this clause which is defined in the A New Tax
System (Goods and Services Tax) Xxx 0000 (Cth) has the same meaning in this
clause.
20.7. NON-MONETARY CONSIDERATION
Notwithstanding the preceding provisions of this clause 20, the parties
acknowledge and agree:
(a) that this agreement will involve each of them malting taxable supplies
to the other for GST purposes;
(b) that the GST exclusive value of the services to be provided by ATN
pursuant to clause 3 of this agreement (NOTIONAL REPORTS FEE) is the
amount set out in Item 5 of Schedule 1;
(c) that throughout the Term of this agreement;
(i) ATN shall provide tax invoices to the Broadcaster based on the
Notional Reports Fee; and
(ii) the Broadcaster shall provide tax invoices to ATN based on the
total of:
(A) the Tag Broadcast Fee
(B) the Production Fee; and
(C) the Notional Reports Fee; and
(iii) the GST amounts set out in those tax invoices are to be set off
for convenience purposes so that ATN shall only be liable to pay
to the Broadcaster the difference between those GST amounts.
News report broadcasting agreement / page 32
21. Relationship
This agreement does not create a relationship of employment, agency,
partnership or joint venture between the parties.
22. Governing law and jurisdiction
This agreement is governed by the law applicable in New South Wales and
each party irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the courts of New South Wales.
23. Counterparts
This agreement may be executed in any number of counterparts.
24. Alteration
This agreement may be altered only in writing signed by each party.
25. Assignment
A party must not assign this agreement or any right under this agreement
without the prior written consent of the other party, which must not be
unreasonably withheld.
26. Costs
Each party must bear its own costs of preparing and executing this
agreement.
27. Entire agreement
This agreement, including its schedules and annexures, constitutes the
entire agreement between the parties as to its subject matter.
News report broadcasting agreement / page 33
SCHEDULE 1 - ITEM REGISTRY
ITEM 1 1 July 2005
Commencement Date
ITEM 2 30 June 2008
End Date
ITEM 3 $2,500,000 per annum (as adjusted by Schedule 3)
Production Fee
ITEM 4 *** per annum (as adjusted by Schedule 3)
Tag Broadcast Fee
ITEM 5 $200,000
Notional Reports Fee
News report broadcasting agreement / page 34
SCHEDULE 2 -STATIONS
Sydney 2Day FM and Triple M
Melbourne Fox FM and Triple M
Brisbane B105 and Triple M
Adelaide SAFM and Triple M
Perth Mix 94.5 and 92.9
News report broadcasting agreement / page 35
SCHEDULE 3 - PRODUCTION FEE AND TAG BROADCAST FEE
1. DEFINITIONS
In this schedule:
(a) NON-BROADCASTING STATION means a Station not broadcasting the Tags as
required under this agreement;
(b) REDUCTION means the reduction of the Tag Broadcast Fee or Production
Fee to which ATN is entitled by virtue of this schedule;
(c) STATION TAG BROADCAST FEE PERCENTAGE means the percentage of the Tag
Broadcast Fee attributable to the Non-Broadcasting Station as set out
in Schedule 6;
(d) RESOURCE PRODUCTION FEE means the amount of the Production Fee, in
dollars, attributable to the Unavailable Resource as set out in
Schedule 5, or where that is not set out in Schedule 5 due to a
variation in the Production Resources, the fair value of the resource
as determined by an Independent Accountant under clause 9.5;
(e) STATION PRODUCTION FEE means the sum of the Resource Production Fees
for any particular Station as set out in Schedule 5, or where that is
not set out in Schedule 5 due to a variation in the Production
Resources, the fair value of the resource as determined by an
Independent Accountant under clause 9.5;
(f) TR means the total number of Tags scheduled to be broadcast on the
Non-Broadcasting Station in the year in which the Broadcaster fails to
broadcast the Reports;
(g) UNAVAILABLE RESOURCE means any item included in the Production
Resources in Schedule 5 (and as amended from time to time under this
agreement) that is not available to be used by ATN for any reason, but
does not include any item ATN does not require be made available nor
any item where a replacement resource is available to be used by ATN
or where the purpose of provision of the listed item is otherwise able
to be met by a resource or resources made available; and
(h) UR means the number of or Tags which are not broadcast by the
Broadcaster on the Non-Broadcasting Station.
News report broadcasting agreement / page 36
2. Tag Broadcast Fee
The Tag Broadcast Fee is payable by ATN to the Broadcaster in equal monthly
installments within 30 days of receiving from the Broadcaster the statement
required under clause 9.2, unless otherwise stated in that clause.
3. Adjustment of Tag Broadcast Fee
(a) If the Broadcaster does not broadcast any Tag in accordance with the
Broadcasting Schedule (except a Tag that the Broadcaster is not
obliged to broadcast under this Agreement), and the Broadcaster does
not broadcast, and notify ATN of, a replacement broadcast of the Tag
within 5 days, ATN shall be entitled to a reduction of the Tag
Broadcast Fee calculated as follows:
Reduction = (UR/TR) x Tag Broadcast Fee x Station Tag Broadcast Fee
Percentage
(b) ATN may, in its sole discretion, waive its entitlement to part or all
of the adjustment referred to in paragraph (a) above by notice in
writing to the Broadcaster.
4. PRODUCTION FEE
The Production Fee is payable by ATN to the Broadcaster in equal monthly
instalments within 30 days of receiving from the Broadcaster the statement
required under clause 9.2, unless otherwise stated in that clause.
5. ADJUSTMENT OF PRODUCTION FEE
(a) If a Production Resource is unavailable to ATN during the Term, then
the Production Fee shall be reduced by deducting from the Production
Fee (on a pro-rata basis for the number of days (or part days) that
the Unavailable Resource is unavailable to ATN) the proportion of the
Resource Production Fee applicable to that Production Resource.
(b) If ATN is entitled to a reduction of the Tag Broadcast Fee by virtue
of paragraph 3 that is equal to or greater than 5% of the Tag
Broadcast Fee payable in any one month period, ATN shall also be
entitled to a reduction of the Production Fee for the affected Station
calculated as follows:
Reduction = (UR/TR) x Station Production Fee
(c) There will not be a reduction in the Production Fee if ATN determines
at any time during the Tern that it wishes to itself provide some of
the Production Resources and therefore does not require by does not
News report broadcasting agreement / page 37
6. APPLICATION OF ADJUSTMENTS
(a) Should ATN be entitled to more than one adjustment by virtue of this
schedule then ATN shall be entitled to the sum of them all.
(b) Any adjustments made to the Tag Broadcast Fee or the Production Fee
in accordance with this schedule shall be accounted for, as far as is
possible, by reducing the monthly payment of the Tag Broadcast Fee the
Production Fee (as applicable) payable in respect of the month in
which the events leading to the reduction occurred.
7. CONSUMER PRICE INDEX CHANGES TO PRODUCTION FEE
The Production Fee shall be increased or reduced in each year of the Term
having regard to the change in the Consumer Price Index (All Groups) All
Capital Cities.
News report broadcasting agreement / page 38
SCHEDULE 4 - BROADCASTING SPECIFICATIONS
1. ITEM 1- TAG SPECIFICATIONS
1.1 LENGTH OF TAGS
Each Tag shall be no more than ten seconds in length.
1.2 QUALITY AND CONTENT OF TAGS
(a) Each Tag shall comply in content and style with the Broadcaster's
standard policies as provided by the Broadcaster to ATN, and as
amended from time to time regarding tags on the Stations in the News
Bulletins and also those generally in relation to advertising. It is
acknowledged that the conduct of broadcasters can influence reform of
advertising or broadcasting laws codes or regulation. The Broadcaster
will be entitled to take into account regulator and community concern
including those relating to setting its policies.
(b) A Tag shall be produced and provided in a form which ensures that a
reasonable listener of the Station(s) can distinguish that Tag as
advertising material as opposed to editorial, news or other material.
The Broadcaster shall have the absolute right, in its discretion, to
reject any Tag which in the opinion of the Broadcaster does not
conform to this paragraph, in which case ATN may provide a substitute
Tag.
(c) A Tag shall not contain news or current affairs material nor any
political, religious, economic or social comment statement or opinion
(d) A Tag must comply with the requirements of clause 6(a)(i) - (xi) of
this agreement
(e) A Tag for a Station shall not be voiced or presented by a person who
presents News Bulletins or Reports for that Station.
(f) All other specifications of the Tags shall be at the sole discretion
of ATN, provided they comply with the requirements of clause 6 and
otherwise with this agreement
2. ITEM 2 - REPORT SPECIFICATIONS
2.1 QUALITY OF REPORTS
In addition to the requirements under clause 6, the Reports must be of high
quality, containing relevant and timely information so as to be of maximum
benefit to the Target audiences of the Stations.
News report broadcasting agreement / page 39
2.2 LENGTH OF REPORTS:
The Reports shall be a length directed by the Broadcaster in writing to
ATN.
2.3 NUMBER OF REPORTS
The number of Reports made available will be no less than the number of
Reports sufficient to enable the compilation by the Broadcaster of a
Bulletin from the Reports (and Links) of the duration notified by the
Broadcaster to ATN in writing from time to time, but not to exceed 5
minutes.
2.4 PRESENTERS
(a) Persons supplied by the Broadcaster as part of the Production Services
will be used to present the Reports and the Links. Should ATN wish to
supply any person to present Reports it shall notify Broadcaster of
that desire and supply to the Broadcaster the identity and background
of the person and provide the Broadcaster with opportunity to evaluate
the work of the proposed presenter. The Broadcaster will provide ATN
with a response to that request as soon as practicable but in any
event within 14 days of receipt of all relevant information. The
Broadcaster has the right to accept or refuse the request in its
entire discretion.
(b) Should ATN provide any presenter of a Report then ATN will ensure that
the Presenter sign an agreement containing, as a minimum, the
following:
(i) conditions sufficient to enable the Broadcaster to comply with
any law regulation or Broadcasting Regulation (whether current or
prospective) requiring the Broadcaster to collect or provide any
information in relation to the presenter;
(ii) provisions enabling the use of all material and Reports produced
or voiced by the presenter in any manner contemplated or
permitted by the terms of the agreement including a covenant
assigning the intellectual property rights in the product of the
presenters services to ATN and confirming the breadth of their
permitted use in conformance with the agreement;
(iii) a term requiring the presenter to attend training as reasonably
required and also as necessary to enable compliance by a
Broadcaster with the Broadcasting Services (Commercial Radio
Compliance. program) Standard 2000;
(iv) a covenant that, to the best of the presenter's knowledge and
belief, the work the presenter produces will not be in breach of
intellectual property rights of any person;
News report broadcasting agreement / page 40
(v) a covenant that the presenter will comply with all relevant laws
and regulations in the provision of the services;
and, in the case of the presenter whose employment is covered by any
industrial award or agreement, the agreement with the presenter shall
not contain any term or provision in breach of such award and ATN will
comply with such award in all respects in relation to the engagement
of that presenter.
(c) In the case of a presenter supplied by ATN the Broadcaster shall have
the right to seek that a replacement presenter be used should the
Broadcaster be reasonably dissatisfied with the quality, reliability
or style of content produced by that Presenter or in the case of any
misconduct or other performance or behavioural issue that would
reasonably give rise to such a request by the Broadcaster, or in the
event that continuance of the use of the presenter will or is likely
to detrimentally affect the business or reputation of the Broadcaster
or its ability to secure the Production Resources or any of them.
2.5 STYLE OF REPORTS
The Reports and Links for a Station must be presented in a style and be
consistent with the relevant Station programming format and News Format as
notified to ATN by the Broadcaster in writing. The Broadcaster will give
reasonable notice (not exceeding 14 days) of any material change in format
of the Station where that change affects the news requirements.
News report broadcasting agreement / page 41
SCHEDULE 5 - PRODUCTION RESOURCES
SA FM - ADELAIDE AND Xxxxxx Xxxxxx
TRIPLE M - ADELAIDE Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxx
Xxxxxx Xxxxxx
Xxx Xxxxxxx
Xxxxx Xxxxxxxx
Xxxxxxxxx Xxxxx
Total $400,000
TRIPLE M - MELBOURNE AND Xxxxxxxx Xxxx
FOX FM - MELBOURNE Xxxxx Xxxxxxxx
Xxxxxx X'Xxxxx
Xxxxxxxx Xxxxxx
Xxxxx XxXxxxxxxx
Xxxxxxx Xxxxxxxx
Peta Xxxxxx
Xxxxxxx Xxxxxx
Xxxx Xxxxxxx
Total $390,000
2DAY FM - SYDNEY AND Xxxxxxx XxXxxxxx
TRIPLE M - XXXXXX Xxx Xxxxx
Xxxxxxx Xxxxxxx
Xxxxxxxx Field
Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx
Sasha Higlett
Xxxxx Xxxxx
Xxxx Xxxxxxx
Total $660,000
MIX 94.5 - PERTH AND Phynea Papalazaros
92.9 - PERTH Xxxxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxxx
Xxxxxx Xxxx
Xxxxxx Chidzey
Xxxxxxxx Xxxxxxxx
Xxxxxx Xxxxx
Xxxxxxxxx Xxxxx
Xxxxx Xxxxxxx
Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxx
Xxxxx Xxxxxx
News report broadcasting agreement / page 42
Total $316,531
TRIPLE M - BRISBANE AND Xxxxx Xxxxxxxx
B105 - BRISBANE Xxxxxxx Xxxx
Xxxx Xxxxxxxxx
Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx
Xxxxxxx Xxxxxx
Xxxx Xxx
Xxxxxx Xxxxx
Total $265,000
TOTAL 47
and also recording and editing equipment (including for on road), workstations
access, studio access, Perth news vehicle and AAP licence access(totalling
$510,000) in respect of the Stations only and being those items that are used
exclusively for news production as at the date hereof.
News report broadcasting agreement / page 43
SCHEDULE 6 - Tag Fee Percentages
B105 - BRISBANE ***
TRIPLE M - BRISBANE ***
92.9 - PERTH ***
MIX 94.5 - PERTH ***
TRIPLE M - SYDNEY_ ***
2DAY FM - SYDNEY ***
SA FM - ADELAIDE ***
TRIPLE M - ADELAIDE ***
TRIPLE M - MELBOURNE ***
FOX FM - MELBOURNE ***
News report broadcasting agreement / page 44
SCHEDULE 7 - BROADCASTING SCHEDULE
SCHEDULED TIMES FOR NEWS BULLETINS
STATION WEEKDAYS WEEKENDS / PUBLIC HOLIDAYS
------- ---------------------------------------------------- ---------------------------------
2DAY 0600 to 0830 inclusive half hourly plus 1600, 0600 to 1000 inclusive hourly
1700 and 1800
FOX 0600 to 0830 inclusive half hourly plus 1600, 0600 to 1000 inclusive hourly
1700 and 1800 Saturdays, 0700 to 1000 hourly
Sundays
B105 0500 to 0830 inclusive half hourly, plus 1600, 0600 to 0900 inclusive hourly
1700 and 1800
SAFM 0600 to 0830 inclusive half hourly plus 1600, 0700 to 1200 inclusive hourly. In
1700 and 1800 football season only SAFM runs
sports updates hourly from 1300
to 1800 inclusive
MIX 0500 to 0830 inclusive half hourly, then hourly 0600 to 1200 inclusive hourly
1000 to 1800
92.9 0530 to 0830 inclusive half hourly, then 1600, 0600 to 0900 inclusive hourly
1700 and 1800 Saturday, 0700 to 0900 inclusive
hourly Sundays
2MMM 0600 to 0830 inclusive half hourly, plus 1600, 0600 to 1000 inclusive hourly
1700 and 1800
3MMM 0600 to 0830 inclusive half hourly plus 1500, 1600, 0600 to 1000 inclusive hourly
1700 and 1800 3MMM runs 5 M-Sport updates
between 1100 and 1800 during
football season and 8 per day
outside football season
4MMM 0500 to 0830 inclusive half hourly, plus 1600, 0600 to 1800 inclusive virtually
1700 and 1800 hourly (12 or 13 reports)
5MMM 0600 to 0830 inclusive half hourly, then hourly from 0700 to 1200 inclusive hourly.
0900 to 1800 5MMM runs M-Sport updates hourly
from 1300 to 1800 inclusive
UPDATES REQUIRED TO BE PROVIDED UNDER CLAUSE 3.1(C)
2MMM two brief random updates between 9am and 3pm
3MMM 3 or 4 brief random updates between 9am and 3pm
4MMM a minimum of 5 daytime updates between 9am and 3pm
News report broadcasting agreement / page 45
SCHEDULE 8 - RESTRICTED CLIENTS
ITEM 1 - CATEGORY A CLIENTS
Any political party, trade union or related organisation or religious
organisation
Any charitable organisation
Clients advertising or promoting any Adult product, service or location
providing such product
Crazy Xxxxx
Free to air Television Operators and their television affiliates
ITEM 2 - CATEGORY B CLIENTS
News report broadcasting agreement / page 46
SCHEDULE 9 - RESTRICTED DAYS AND RESTRICTED BROADCASTING SCHEDULE
ITEM 1 - RESTRICTED DAYS
New Year's Day
Australia Day
Good Friday
Easter Monday
Anzac Day
the Queens Birthday public holiday
Labour Day
Christmas Day
Boxing Day
Melbourne Cup Day (Melbourne only)
Adelaide Cup Day (Adelaide only)
Foundation Day (WA only)
Together with any other officially declared public holiday in any State in which
case the relevant day shall apply only to the Market in that State.
News report broadcasting agreement / page 47
ITEM 2 - RESTRICTED BROADCASTING SCHEDULE
This table represents the News Bulletin broadcast schedule currently adopted by
the relevant Station for the Restricted Days immediately prior to the execution
of this agreement and is the indicative schedule for that purpose:
STATION
-------
2DAY 0600 to 1000 inclusive hourly
FOX 0700 to 1000 hourly
B105 0600 to 0800 inclusive hourly
SAFM 0700 to 1200 inclusive hourly
MIX 0600 to 1200 inclusive hourly
92.9 0600 to 0900 inclusive hourly Saturday, 0700 to 0900 inclusive hourly
Sundays.
2MMM 0600 to 1000 inclusive hourly
3MMM 0600 to 1000 inclusive hourly
4MMM 0600 to 1800 inclusive virtually hourly (12 or 13 reports
5MMM 0700 to 1200 inclusive hourly
Additional Updates required under clause 3.1 (c )
3MMM - 5 M-Sport updates between 1100 and 1800 during football season and 8 per
day outside football season
5MMM - M-Sport updates hourly from 1300 to 1800 inclusive
SA FM in football season only - sports updates hourly from 1300 to 1800
inclusive
News report broadcasting agreement / page 48
SIGNING PAGE
EXECUTED as an agreement
EXECUTED BY THE AUSTRALIAN TRAFFIC NETWORK
PTY LIMITED
/s/ Xxxxxxx X. Xxx III left arrow /s/ Xxxxxxx Pezzimanti left arrow
------------------------------------- ----------------------------------------
Signature of director Signature of director/company secretary
(Please delete as applicable)
/s/ Xxxxxxx X. Xxx III Xxxxxxx Pezzimanti
------------------------------------- ----------------------------------------
Name of director (print) Name of director/company secretary
(print)
EXECUTED BY AUSTEREO PTY LIMITED
/s/ Xxxxxxx Xxxxxxxx left arrow left arrow
------------------------------------- ----------------------------------------
Signature of director Signature of director/company secretary
(Please delete as applicable)
Xxxxxxx Xxxxxxxx
------------------------------------- ----------------------------------------
Name of director (print) Name of director/company secretary
(print)
MINTERELLISON|
|LAWYERS
News report broadcasting agreement / page 49
