TECHNICAL SERVICES AGREEMENT
THIS TECHNICAL SERVICES AGREEMENT (the "Agreement") is entered into as of
this 1st day of December, 2004 ("Commencement Date"), between Skyport Services,
Inc. ("Skyport" or Service Provider), an Arkansas corporation, and The Tube
Music Network, Inc. ("The TUBE" or "Client"), a Florida, with its principal
offices at 0000 Xxxx Xxxxxxx Xxxx Xxxx, Xxxxxxxxxx Xxxxx, Xxxxxxx 00000.
WHEREAS, SERVICE PROVIDER is engaged in the provision of television
post-production, origination, compression, authorization, master control,
accounting, traffic, billing, transmission services and other broadcast services
at its Network Operations Center facility, as defined below;
WHEREAS, CLIENT and SERVICE PROVIDER acknowledge that this agreement is
subject to the Full-Time Transponder Capacity Agreement dated February 28, 2003
and the First Amendment to Full-Time Transponder Capacity Agreement dated August
12, 2003, by and between Equity Broadcasting Corporation and PanAmSat
Corporation ("PanAmSat Agreement"); and
WHEREAS, CLIENT operates a television programming service delivering
Client's program channel(s) (the "Channel" or the "Channels"), and CLIENT
desires to engage SERVICE PROVIDER for the provision of the services specified
in Section 1 (the "Services").
NOW, THEREFORE, in consideration of the mutual terms and conditions
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. SERVICES AND FACILITIES PROVIDED BY SERVICE PROVIDER. During the
Initial Service Term (as defined below) and any renewal thereof, SERVICE
PROVIDER will render to CLIENT the services (the "Services") as described in
Exhibits A though J attached to this Agreement and incorporated by this
reference. The Exhibits are:
EXHIBIT A - ORIGINATION SERVICES
EXHIBIT B - TRANSMISSION and COMPRESSION SERVICES
EXHIBIT C - POST-PRODUCTION SERVICES
EXHIBIT D - SATELLITE RECEPTION AUTHORIZATION SERVICES
EXHIBIT E - OTHER SERVICES
EXHIBIT F - REPORTING SERVICE PROBLEMS
EXHIBIT G - SERVICE FEES
EXHIBIT H - WIRING INSTRUCTIONS
EXHIBIT I - INSURANCE
EXHIBIT J - COVERAGE MAP
1
The Services shall be provided by SERVICE PROVIDER at the Network and
Production Operations Center (the "NOC"), currently located at #0 Xxxxxxxxxxx
Xxxxx, xxxxx 000, Xxxxxx Xxxx, Xxxxxxxx 00000, but which is subject to change at
the sole discretion of SERVICE PROVIDER.
2. SERVICE TERM. This Agreement shall be effective from the Commencement
Date and shall continue until November 30, 2005, as defined elsewhere herein
(the "Initial Service Term"). Thereafter, this Agreement shall automatically
renew for successive twelve-month periods unless either party gives prior
written notice to the other of its intent to cancel at least six (6) months
prior to the last day of the Initial Service Term or any renewal thereof.
3. EQUIPMENT. Except as otherwise specifically designated in the Exhibits
attached hereto, all equipment located at the NOC which is used to provide the
Services is and shall remain the property and under the complete control of
SERVICE PROVIDER.
4. SERVICE PROBLEMS AND INTERRUPTIONS.
4.1 Reporting. CLIENT shall report all Service problems, outages and
Service degradations to SERVICE PROVIDER as soon as is reasonably practicable,
except for those occasional temporary interruptions that are expected and common
with the provision of the Services described herein . SERVICE PROVIDER will log
the time of Client's report, verify the problem, notify CLIENT in writing of the
corrective action needed to be taken, and upon written approval from CLIENT will
take the corrective action as soon as is reasonably practicable.
4.2 Service Interruption Credits. Provided that this Agreement has
not been terminated pursuant to Paragraph 11, and CLIENT is not in default,
SERVICE PROVIDER's credits to CLIENT for Service Interruptions, if applicable,
shall be computed as set out in Exhibit G.
4.3 Exceptions. Notwithstanding any provision to the contrary in
this Agreement and except as provided in Exhibit G, and provided that SERVICE
PROVIDER maintains any agreed upon backup or redundant facilities, SERVICE
PROVIDER shall not be responsible for and shall not be in default of this
Agreement as a result of, nor shall it be held liable for any damages, claims,
losses, or costs and expenses on account of, any Service Interruption or any
failure to provide other Services and facilities hereunder, if such interruption
or failure occurs due to any of the following: (i) damage to any equipment or
interruptions in the Services caused by electrical storms, fire, weather, flood,
natural disaster, national emergency or war, sabotage, riots, governmental
authority, acts of God, willful or criminal misconduct of third parties, or
forces outside the control of SERVICE PROVIDER; (ii) interference from other
communications systems, whether licensed or not, that use the same frequency
bands as the Services herein; except SERVICE PROVIDER shall use reasonable
efforts to take corrective actions against such interference; (iii) any
interruption or out-of-specification performance of any associated satellite
transponders; (iv) conditions, which are beyond the control of SERVICE PROVIDER,
that threaten the safety of operations and maintenance personnel; (v) occasional
interruptions due to heavy storms or the passing of the sun within the beamwidth
of any associated receive antenna system(s) during the spring and fall equinox
periods; (vi) degradation or interruptions of protection systems and degradation
or interruption of signals due to protection switching; (vii) outage,
interruption or degradation due to atmospheric attenuation of signals; (viii)
such planned interruptions for testing or maintenance as may be agreed to in
advance between CLIENT and SERVICE PROVIDER; (ix) any changes to the SERVICES
requested in writing by CLIENT and agreed upon by SERVICE PROVIDER (x) any
failure of CLIENT to fulfill a material obligation hereunder where the failure
of CLIENT to perform such material obligation causes a service interruption;
(xi) software failures; and/or (xii) compliance by SERVICE PROVIDER with action
by any court, agency, legislature or other governmental authority of competent
jurisdiction that makes it unlawful for SERVICE PROVIDER to provide the Services
or any part thereof in accordance with this Agreement, provided that SERVICE
PROVIDER has provided written notice to CLIENT of any such action as promptly as
practicable.
2
5. MONTHLY SERVICE FEES, SECURITY DEPOSIT.
5.1 Monthly Service Fees. From and after the Commencement Date and
during the term of this Agreement, Client agrees to pay the Monthly Service Fees
as set forth in Exhibit G ("Monthly Service Fees"). On or before the execution
of this Agreement, Client shall pay Service Provider (i) the Monthly Service Fee
for the first full month of service; (ii) the one time charges set forth in
Exhibit G, (iii) the Monthly Service Fee for one additional month, which shall
be held by Service provider and applied towards the Monthly Service Fee due for
the last month of the term. Service Provider shall submit to Client an invoice
for any additional Services or expenses provided, or to be provided, as the case
may be, by Service Provider during each month of the Term (the "Monthly Service
Fees"), which invoices shall include and itemize all applicable Taxes (as
defined in Section 7herein) if any. If Client's Monthly Service Fees are late
for two consecutive months, Service Provider has the right to require Client to
pay to Service Provider the Monthly Service Fee for one additional month and if
Service Provider so requires, Client shall pay such deposit. Payment shall be
via wire transfer by the first business day of each month. Wiring instructions
are attached as Exhibit H. All payments due from Client and not received by
Service Provider within five days of the due date shall be subject to a
delinquency charge at the rate of one and a half percent (1 1/2 %) per month, or
the highest rate permitted by law on such overdue amount from the due date until
it is actually received by Service Provider and Service Provider may immediately
terminate or shut-down the services provided to Client. The Monthly Service Fees
shall increase at a rate of 3% per year.
5.2 Security Deposit. No later than ten (10) days prior to the
Commencement Date, CLIENT shall pay to SERVICE PROVIDER the amount specified in
Exhibit G as a "security deposit" to be held by SERVICE PROVIDER without
interest as security for the performance by CLIENT of its obligations under this
or any other agreements it has with SERVICE PROVIDER. Should CLIENT fail to make
any payment or other performance required by this or any other agreement it has
with SERVICE PROVIDER, SERVICE PROVIDER may, in its sole discretion, and in
addition to other remedies provided herein or available at law, apply any or all
of the security deposit to such arrearage.
3
6. COMPLIANCE WITH APPLICABLE LAWS.
6.1 SERVICE PROVIDER's Obligations. SERVICE PROVIDER shall prepare,
apply for and maintain all governmental permits, licenses and authorizations
necessary to perform the Services.
6.2 Applicable Laws. This Agreement is subject to all applicable
federal, state and local laws and regulations and orders of governmental
agencies, as in effect from time to time, including but not limited to, the
Communications Act of 1934 and the rules and regulations of the FCC or any other
applicable governing body. Either party may terminate this Agreement without
further liability if ordered to do so by the final order of a court or other
governmental agency or if such order or ruling would make it impossible for
either such party to carry out its obligations under this Agreement.
6.3 Satellite Services. The Parties acknowledge that the Services to
be provided hereunder will be providing using satellites and transponder space
leased by Service Provider from a Satellite Company. The Services shall be
provided in accordance with the operation guidelines and specifications of the
Satellite Company, as amended by the Satellite Company from time to time. Both
Parties shall comply with such guidelines and specifications as necessary to
facilitate provision and use of the Services.
7. TAXES. CLIENT acknowledges and understands that the Monthly Service Fee
is computed exclusive of any applicable federal, state or local use, excise,
gross receipts, sales and privilege taxes, duties, fees or similar liabilities
(other than general income or property taxes) whether charged to or against
SERVICE PROVIDER or CLIENT for the Service provided to CLIENT ("Taxes"). These
Taxes may include CLIENT's pro rata share of any "Universal Service Fund"
contribution requirement or other charge required by the Communications Act of
1934, as amended, which arises from CLIENT's use of satellite transponder or
other telecommunications services provided hereunder, to the extent applicable.
All such Taxes shall be paid by CLIENT in addition to all other charges provided
for herein.
8. LIMITATION OF LIABILITY.
8.1 SERVICE PROVIDER's Liability. Excepting only liability for
SERVICE PROVIDER's reckless or willful misconduct, SERVICE PROVIDER's liability
arising out of its provision of Services hereunder, including but not limited to
liabilities arising out of SERVICE PROVIDER's negligence, mistakes and
omissions, interruptions, delays, errors, or other defects in the Services or
breach of contract or arising out of the failure to furnish Services, whether
caused by acts of commission or omission, shall be limited to the Service
Interruption Credits described in Paragraph 4.2 and Exhibit G or CLIENT's right
to terminate as set forth in Paragraph 11.3 with respect to any Service
Interruptions or to obtain a pro rata reduction in fees for other Services not
provided. Such Service Interruption Credits or pro rata reduction of other
Service fees and CLIENT' right of termination as set forth in Paragraph 11.3
shall be the sole remedies of CLIENT, including any end user of CLIENT, and the
sole liability of SERVICE PROVIDER hereunder. SERVICE PROVIDER's liability for
damages or losses of any kind arising out of its furnishing Services shall in no
event exceed an amount equal to its fixed monthly or other charge allocable to
the faulty or defective Service as set forth and computed in this Agreement. In
no event shall SERVICE PROVIDER be liable for punitive or consequential damages.
4
8.2 CLIENT's Liability. Excepting only liability for Client's
reckless or willful misconduct and content obligations as set forth in Section 9
of this agreement, Client's liability arising out of its negligence, mistakes
and omissions, or breach of contract, whether caused by acts of commission or
omission, shall be limited to the Monthly Service fees hereunder payable for the
Term or SERVICE PROVIDER's right to terminate as set forth elsewhere this
agreement. Such allowances for interruption and SERVICE PROVIDER's right of
termination shall be the sole remedies of SERVICE PROVIDER, and the sole
liability of CLIENT hereunder.
9. CLIENT CONTENT OBLIGATIONS. CLIENT shall be solely responsible and
liable for all content transmitted by SERVICE PROVIDER as part of the Services,
including compliance with all rules and regulations of the FCC. CLIENT also
agrees that the SERVICE PROVIDER is providing the Services only for lawful
purposes. Transmission, distribution or storage of any material in violation of
any applicable law or regulation is prohibited. SERVICE PROVIDER may, at its
sole discretion, choose not to transmit, distribute or store any material that
SERVICE PROVIDER deems to be inappropriate or in violation of any applicable law
or regulation. SERVICE PROVDER, at its sole discretion, may deem material
inappropriate. That includes, without limitation, material protected by
copyright, trademark, trade secret or other intellectual property used without
proper authorization; material that is obscene, defamatory, or constitutes an
illegal threat or harassment, fraudulent or other material amounting to illegal
misrepresentation; fraudulent or other illegal use of private material; or
material that violates export control laws. Further, to the extent to which
SERVICE PROVIDER is not otherwise obligated hereunder as part of the Services,
CLIENT shall make all arrangements with other common carriers, stations,
networks, sponsors, music licensing organizations, performers, representatives
or other parties for the authorizations necessary to avail itself of the
Services. Client shall maintain in full force and effect through the term of
this agreement adequate property damage, liability, broadcaster's and other
insurance with respect to all assets, equipment, programming and content and
providing coverage against such risks in at least the amounts provided for by
the insurance policies currently maintained by the SERVICE PROVIDER and as
attached as EXHIBIT I.
5
10. CONFIDENTIALITY. Each party to this Agreement agrees that all terms
and conditions of this Agreement and all confidential information furnished by
either party shall be used only in performance of this Agreement, treated as
confidential and not disclosed to anyone other than those who have a need to use
such confidential and proprietary information for the purposes of this
Agreement. The foregoing restrictions and obligations shall not apply with
respect to any information which: (i) is or becomes generally available to the
public through any means other than a breach by the receiving party of its
obligation under this Agreement; (ii) was in the possession of the receiving
party without obligation of confidentiality prior to receipt under this
Agreement; (iii) is disclosed to the receiving party without an obligation of
confidentiality by a third party who has the right to make such disclosure; (iv)
is developed independently by or on behalf of the receiving party without use of
or benefit from the confidential or proprietary information; or (v) is required
to be disclosed by a court or governmental agency of competent jurisdiction,
provided that the party whose information is to be disclosed is given immediate
notice of such requirement and an opportunity to contest to the extent permitted
by the court or governmental agency. Except for any announcement intended solely
for the internal distribution of SERVICE PROVIDER and CLIENT, or any disclosure
required by legal, accounting, or regulatory requirements, all media releases
(including, but not limited to, promotional or marketing material) by CLIENT
shall be approved in writing by the other party prior to the release thereof.
Such approval may be withheld at SERVICE PROVIDER's sole option. CLIENT may not
state, without prior approval from SERVICE PROVIDER, which may be withheld
solely at SERVICE PROVIDER's option, in their promotional and advertising
material that origination, compression, and encryption services are provided to
CLIENT by SERVICE PROVIDER.
11. TERMINATION. This Agreement may be terminated prior to the end of the
Initial Service Term or any renewal thereof as provided in this Section 11 and
the rights and remedies of the Parties upon such termination shall be as set
forth in this Section.
11.1 Termination for Cause. Either party (the "Non-Defaulting
Party") may terminate this Agreement upon a material breach of this Agreement,
excepting payment of the Monthly Services Fees, by the other party (the
"Defaulting Party") if such material breach is not cured by the Defaulting Party
within thirty (30) days of its receipt of written notice regarding such breach
from the Non-Defaulting Party. In the event the Monthly Service Fees are not
paid as set forth in Paragraph 5, SERVICE PROVIDER may immediately terminate
this agreement for cause and terminate all services provided pursuant to this
Agreement. Remedies available to the CLIENT or SERVICE PROVIDER in the event of
termination pursuant to this Paragraph 11.1 are limited to the remedies set
forth in Paragraph 8 of this Agreement.
11.2 Bankruptcy/Insolvency. Either party may terminate this
Agreement if the other party files (or is the debtor in such a filing by a third
party) any proceeding in bankruptcy, receivership, or insolvency, and such
petition is not discharged within sixty (60) days, or makes an assignment for
the benefit of its creditors, or allows any substantial attachment or execution
to be levied upon its property, within sixty (60) days after the Non-Defaulting
Party acquires knowledge of such event and upon ten (10) days' prior written
notice of intent to terminate to the filing party.
6
11.3 Early Termination. CLIENT may terminate this Agreement by
providing SERVICE PROVIDER a minimum of three (3) months' prior written notice
of such intended termination, accompanied by payment of seventy-five percent
(75%) of the total Monthly Service Fees due for the remainder of the Initial
Service Term or renewal period.
11.4 Termination by SERVICE PROVIDER. SERVICE PROVIDER may terminate
this agreement immediately upon written notice to CLIENT in the event that: (1)
Service Provider is no longer able to provide the services specified in this
Agreement; (2) the PanAmSat Agreement is terminated; (3) Client is airing
content that would violate any local, state or federal rules, regulations or
laws; or (4) Service Provider is no longer providing satellite time to third
parties.
12. NOTICES. All notices, demands, requests, or other communications
which may be or are required to be given, serviced, or sent by one Party to the
other Party pursuant to this Agreement (except as otherwise specifically
provided in this Agreement) shall be in writing and shall be delivered
personally, by overnight messenger, by facsimile transmission or mailed by
first-class certified mail, return receipt requested, postage prepaid, addressed
as follows:
If to CLIENT: The Tube Music Network, Inc.
0000 Xxxx Xxxxxxx Xxxx Xxxx
Xxxxxxxxxx Xxxxx, Xx 00000
Xxxx X. Xxxxxx
(000) 000-0000 (Facsimile)
With a copy to: Blank Rome, LLP
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxx Xxxxx, XX 00000
Xxxxx X. Xxxxxxx, Esq.
(000) 000-0000 (Facsimile)
If to SERVICE PROVIDER: Skyport Services, Inc.
#0 Xxxxxxxxxxx Xxxxx, #000
Xxxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
(000) 000-0000 (Facsimile)
With copies to: Skyport Services, Inc.
#0 Xxxxxxxxxxx Xxxxx, #000
Xxxxxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx
(000) 000-0000 (Facsimile)
7
Either party may designate by notice in writing a new address or addressee
to which any notice, demand, request, or communication may thereafter be so
given, served or sent. Each notice, demand, request, or communication which
shall be delivered personally, by overnight messenger, sent by facsimile
transmission, or mailed by first-class certified mail, return receipt requested,
postage prepaid, shall be deemed sufficiently given, served, sent or received
for all purposes at such time as it is delivered to the addressee named above as
to each party, with the signed messenger receipt, return receipt, or the
delivery receipt being deemed conclusive evidence of such delivery, or at such
other time, if any, as delivery is refused by the addressee upon presentation.
13. GENERAL.
13.1 Entire Agreement. This Agreement, together with Exhibits A
through G, constitutes the entire understanding of the parties hereto and
supersedes all prior agreements, whether oral or written, relating to the
subject matters specifically expressed herein. This Agreement cannot be modified
or changed except as agreed in writing by both parties hereto.
13.2 Relationship. It is expressly understood that the parties to
this Agreement intend to establish the relationship of independent contractors,
and do not intend to undertake the relationship of principal and agent or to
create a joint venture or partnership between themselves or their respective
successors in interest.
13.3 Waiver. Except as otherwise set forth herein, no delay or
failure of SERVICE PROVIDER or CLIENT to insist on performance of any of the
terms or conditions herein or to exercise any right or privilege, or either
party's waiver of any breach hereunder, shall be construed to be a waiver
thereof or a waiver of any other terms, conditions or privileges, whether of the
same or similar type.
13.4 Assignment. This Agreement, or any part thereof, may not be
assigned by either party without the written consent of the other; provided,
however, that such consent shall not be unreasonably withheld. This Agreement
may also be assigned by SERVICE PROVIDER to any subsidiary or affiliate or to
any successor in interest of SERVICE PROVIDER. This Agreement shall be binding
upon and shall inure to the benefit of the parties, their respective heirs,
successors, and permitted assigns.
13.5 No Warranty. CLIENT hereby agrees that SERVICE PROVIDER makes
no warranties of any kind, express or implied, including any warranty or
merchantability or fitness for purpose, and CLIENT hereby waives, releases, and
renounces all other rights, claims and remedies against SERVICE PROVIDER,
including without limitation those with respect to loss of use or other
secondary or consequential damages, however occasioned, and whether or not
growing out of or based upon Service Provider's negligence, actual or imputed.
8
13.6 Interpretation. As used herein, the singular shall include the
plural and the plural may refer to only the singular. The use of any gender
shall be applicable to all genders. The captions contained herein are for
purpose of convenience only and are not part of the Agreement.
13.7 Governing Law. This Agreement shall be governed and interpreted
by the laws of the State of Arkansas, without regard to conflict of law rules.
The parties agree that all litigation relating to this Agreement shall be
brought in the state or federal courts of appropriate subject matter
jurisdiction in Pulaski County Arkansas and each party hereby submits itself to
the exclusive in personam jurisdiction of such courts for purposes of any such
litigation.
13.8 Counterparts and Facsimile Signatures. This Agreement may be
executed in counterparts, each of which shall constitute an original and all of
which, when taken together, shall constitute one agreement. Facsimile signatures
shall have the same legal effect as original signatures and this Agreement shall
be binding upon facsimile transmissions of the Agreement executed by each party.
13.9 Representations and Warranties. Each party represents and
warrants to the other that (i) it is an entity duly organized and validly
existing under the laws of its state of organization, (ii) it has the power and
authority to enter into this Agreement and to perform fully all of its
obligations under this Agreement; (iii) it is under no contractual or other
legal obligation that might interfere in any way with its prompt and complete
performance under this Agreement; and (iv) the person executing this Agreement
on its behalf has been duly authorized to do so and such execution is binding
upon it.
14. INDEMNIFICATION.
14.1 SERVICE PROVIDER shall indemnify, defend and hold Client, its
members, affiliates, subsidiaries, and their respective successors, officers,
directors, employees, agents and customers (the "Client Indemnified Parties"),
harmless from and against any and all third party claims, demands, proceedings,
suits and actions, including any related liabilities, obligations, losses,
damages, penalties, fines, judgments, settlements, expenses (including
attorneys' and accountants' fees and disbursements) and costs (collectively,
"Claims against Client"), incurred by, borne by or asserted against any of the
Client Indemnified Parties to the extent such Claims against Client in any way
relate to, arise out of or result from: (i) any intentional or willful conduct
or negligence of any employee, agent or subcontractor of SERVICE PROVIDER (who
is not also employed or an agent or subcontractor of Client); (ii) SERVICE
PROVIDER's or SERVICE PROVIDER's representatives' infringement of a third
party's rights; (iii) any breach of any representation or warranty made by
SERVICE PROVIDER in this Agreement; (iv) any breach or default in the
performance by SERVICE PROVIDER of any of the covenants to be performed by
SERVICE PROVIDER under this Agreement; (v) any acts or omissions of SERVICE
PROVIDER in violation of applicable federal, state or local laws or (vi) any
actual or alleged infringement or misappropriation of any patent, copyright,
trademark, trade name, trade secret or other proprietary or intellectual
property right by any Service provided pursuant to this Agreement.
9
14.2 Client shall similarly indemnify, defend and hold SERVICE
PROVIDER, its members, affiliates, subsidiaries, and their respective
successors, officers, directors, employees, agents and customers (the "SERVICE
PROVIDER Indemnified Parties"), harmless from and against any and all third
party claims, demands, proceedings, suits and actions, including any related
liabilities, obligations, losses, damages, penalties, fines, judgments,
settlements, expenses (including attorneys' and accountants' fees and
disbursements) and costs (collectively, "Claims against SERVICE PROVIDER"),
incurred by, borne by or asserted against any of the SERVICE PROVIDER
Indemnified Parties to the extent such Claims against SERVICE PROVIDER in any
way relate to, arise out of or result from: (i) any intentional or willful
conduct or negligence of any employee, agent or subcontractor of Client (who is
not also employed or an agent or subcontractor of SERVICE PROVIDER); (ii) Client
or Client's representatives' infringement of a third party's rights; (iii) any
breach of any representation or warranty made by Client in this Agreement; (iv)
any breach or default in the performance by Client of any of the covenants to be
performed by Client under this Agreement; (v) any acts or omissions of Client in
violation of applicable federal, state or local laws; (vi) any actual or alleged
infringement or misappropriation of any patent, copyright, trademark, trade
name, trade secret or other proprietary or intellectual property right by any
programming delivered pursuant to this Agreement or (vii) any other Claim
against SERVICE PROVIDER based on the content of such programming or other
material supplied by Client.
15. CROSS INDEMNIFICATION. In the event any act or omission of a party or
its employees, servants, agents, or representatives causes or results in (i)
damage to or destruction of tangible property of the other party or third
parties, and/or (ii) death or injury to persons including, but not limited to,
employees or invitees of either party, then such party shall indemnify, defend,
and hold the other party harmless from and against any and all claims, actions,
damages, demands, liabilities, costs, and expenses, including reasonable
attorneys' fees and expenses, resulting there from. The indemnifying party shall
pay or reimburse the other party promptly for all such damage, destruction,
death, or injury.
10
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first set forth above.
By: ___________________________ By:___________________________
Name: ___________________________ Name: Xxxx X. Xxxxxx
Title: ___________________________ Title: Chief Financial Officer
11
EXHIBIT A
ORIGINATION SERVICES
1. SERVICE PROVIDER shall originate a full-time (7 x 24) programming
stream. The stream shall originate from the NOC. The stream shall originate from
any of, but is not limited to, the following:
a. Video Tape Recorders ("VTR");
b. Video Server material previously ingested from VTRs or video
files;
c. Time Delay Video Server from a different primary channel
d. Live feed directly from remote site routed through the NOC.
2. At an additional cost, SERVICE PROVIDER may provide additional
equipment to facilitate the closed captioning from data files, insertion of an
ID "Bug", and/or cue triggers, collectively referred to as "ancillary data", on
the channel. In addition, any channel with closed-captioned data contained
within the Vertical Blanking Interval ("VBI"), as defined in EIA 608, shall be
passed without deletion.
3. SERVICE PROVIDER shall provide experienced personnel to maintain a high
quality on-air look including: a) engineering management personnel to design,
construct, and assure overall technical quality and to maintain equipment within
its performance parameters; b) operation management to supervise operations
personnel and equipment operation; and c) a designated management-level person
as a contact acceptable to CLIENT who will address all business and contractual
issues including the on-air look to ensure that CLIENT' reasonable expectation
for network operations are being met. Discrepancy summaries shall be provided in
writing to CLIENT on a weekly basis by SERVICE PROVIDER in SERVICE PROVIDER's
standard format, provided that this format has been reviewed by and is
acceptable to CLIENT. SERVICE PROVIDER shall use an equipment configuration in
the provision of Origination Services to CLIENT substantially as follows: a)
associated synchronization equipment conforming to broadcast standards,
including sync generators, signal generators, and time base correctors; b)
associated audio/video distribution and routing equipment, racks, consoles and
test equipment; c) a comprehensive monitoring system to view outgoing and return
signals and to monitor the signal at various points throughout the transmission
path; d) sufficient uninterrupted (UPS) and back-up generator power and HVAC for
all technical and equipment areas; and e) equipment providing output signals,
per channel, audio and video, for delivery to the CLIENT transmission facility
in accordance with the Exhibits. All origination equipment shall meet
manufacturers' specifications in effect at the time of purchase. Unless specific
quantities, brand types or models of equipment are specified above, SERVICE
PROVIDER shall have the right to use such equipment as SERVICE PROVIDER deems
appropriate to perform the services.
12
4. CLIENT, at CLIENT' expense, shall provide: (i) a daily broadcast
schedule or program grid to SERVICE PROVIDER's Broadcast Support department. In
addition, CLIENT shall provide tape elements and other appropriate materials to
the SERVICE PROVIDER master control staff at least twenty-four (24) hours prior
to scheduled broadcast time, except for live feeds; (ii) all communications
links, as required, between CLIENT offices and playback location. CLIENT
personnel shall verify the daily log, tape delivery, program integrity and
discrepancies with SERVICE PROVIDER personnel. Source material and commercial
spots for primary and back-up programming, promotional, and interstitial
material supplied to SERVICE PROVIDER by CLIENT shall be on an approved VCR
format, server-based files, or Electronic Transfer (FTP) to SERVICE PROVIDER at
the sole expense of CLIENT, and shall be manufactured in accordance with
accepted broadcast standards. All tape stock shall be supplied by and shall
remain the property of CLIENT. CLIENT acknowledges that it is directly
responsible for arranging for and paying the costs of the following: (i) costs
for shipping of its tape material to and from the origination facility; (ii) the
delivery of any satellite turnaround programming to the origination facility;
and (iii) any third party-provided fiber optic, transponder or microwave
transport other than required for uplinking of CLIENT's services. CLIENT shall
obtain and provide SERVICE PROVIDER with all authorizations of any signal
security device employed by CLIENT' program suppliers, necessary for SERVICE
PROVIDER to receive program material from CLIENT' program suppliers.
13
EXHIBIT B
TRANSPORT and COMPRESSION SERVICES
Notwithstanding anything in this agreement to the contrary, the technical
specifications are subject to change at the option of SERVICE PROVIDER.
1. SERVICE PROVIDER will encode, compress, encrypt, and transport the
CLIENT channel, on its existing platform, utilizing C-Band or Ku-Band transport.
(Transponder and channel assignment shall be made available at least two weeks
before launch date. Terms and conditions of satellite carriage shall be in
compliance with the agreement between SERVICE PROVIDER and PanAmSat.
2. Transport and Compression Services shall be provided for the CLIENT'
Channel, on a 24 hour per day basis, in a digital compressed mode using a
Scientific Atlanta PowerVu Plus Digital Compression/Encryption Encoder System
(or equivalent) as part of the compression chain, which is subject to change at
SERVICE PROVIDER'S discretion. SERVICE PROVIDER shall not be responsible for any
failure of the Services to comply with the technical specifications of this
Exhibit B, to the extent that such failure is caused by the failure of the
transport or transponder(s).
3. SERVICE PROVIDER shall conduct appropriate testing prior to the
initiation of specific Services in order to ensure that the facilities provided
by SERVICE PROVIDER or a SERVICE PROVIDER third party provider, meet the
following technical specifications: (i) each channel composed of video exciter
or upconverter and HPA in a fully automatic 1:N switching configuration; and
(ii) sufficient uninterrupted (UPS) and back-up generator power and HVAC for all
technical and equipment.
a. The design and maintenance goal for compressed services, if any,
shall be video and audio performance as specified by the compression system
manufacturer. Industry standards for compressed video services are not available
and manufacturer specifications shall be used until appropriate standards have
been accepted.
b. The microwave and/or fiber optics facility used to transport the
Channel from the origination facility to the transmission or uplink facility, if
any, shall be protected.
c. The encoders comprising the compression system shall transport
both MPEG audio and AC-3 audio as available from Scientific-Atlanta.
4. SERVICE PROVIDER, at its sole option may transfer the Services provided
to CLIENT to a different satellite transport service.
1
5. Obligations of CLIENT and SERVICE PROVIDER with respect to satellite
transponders. SERVICE PROVIDER shall obtain the rights to use the transponder(s)
to which the Channel shall be transported by SERVICE PROVIDER and shall obtain
all technical information necessary to enable SERVICE PROVIDER to provide the
Services to such transponder(s). CLIENT and SERVICE PROVIDER shall each remain
in compliance with all terms and conditions contained in this Exhibit B, as they
relate to CLIENT' and/or SERVICE PROVIDER's specific obligations.
2
EXHIBIT C
POST PRODUCTION SERVICES
(none contemplated)
1
EXHIBIT D
SATELLITE RECEPTION AUTHORIZATION SERVICES
(To be provided by an independent third party)
2
EXHIBIT E
OTHER SERVICES
(none contemplated)
3
EXHIBIT F
REPORTING SERVICE PROBLEMS
CLIENT may report routine service problems, outages and degraded services to
SERVICE PROVIDER operators, available on a 24-hour basis at the Network
Operations Center and shall specify the date and time of the service problem,
outage and/or degraded service, the number and type of receive systems affected,
the specific nature of the problem experienced, and the extent and severity of
the service problem, outage, and or degraded service. For normal procedures and
emergencies, twenty-four (24) hours per day:
Business Hours Contacts (9:00 AM - 5:00 PM Central Time):
Satellite Issues: 000-000-0000
Server Issues: 000-000-0000
Studio Equipment Issues: 000-000-0000
Master Control Issues: 000-000-0000
All Other Issues or
Technical Conflict Resolution: 000-000-0000
24-Hour Emergency Telephone: Trouble Line: 000-000-0000
All notices involving an emergency response shall indicate
-Urgent, immediate response required-
4
EXHIBIT G
SERVICE FEES
Fees for the satellite distribution and program origination services include:
Statement of Charges- The Tube Music Network
1. Distribution Services OTC Quoted Price Discounted Price
Single Channel Distribution [XXXX]* [XXXX]* [XXXX]*
2. Program Origination
Assembly of "Raw" [XXXX]* [XXXX]* [XXXX]*
Program Material
3. Internet [XXXX]* [XXXX]*
4. C-Band [XXXX]* [XXXX]*
Total [XXXX]* [XXXX]* [XXXX]*
There will also be additional pass-through fees from Service Provider to Client,
which will include, but not be limited to, all additional costs Service Provider
must incur to provide the services set forth in this Agreement (ex. OSI traffic
system cost of adding a network to the traffic system) and which shall be due
within 30 days of being invoiced.
There will also be additional pass-through fees from Service Provider to Client,
which will include, but not be limited to, all additional costs Service Provider
must incur to provide the services set forth in this Agreement (ex. OSI traffic
system cost of adding a network to the traffic system) and which shall be due
within 30 days of being invoiced.
3. Security Deposit: [XXXX]*
4. Service Interruption Credits.
----------
* File under an application for confidential treatment.
1
A "Service Interruption" shall mean the failure of SERVICE PROVIDER to deliver a
signal containing CLIENT' channel for a period of 5 minutes or longer and which
is not the result of CLIENT' failure to timely perform any of its obligations or
provide materials and elements under this Agreement, including program or
channel schedules, program tapes, commercials, or as a result of any other
breach of this Agreement by CLIENT, or as the result of a "force majeure" event
described in Paragraph 4.3 of the Agreement. SERVICE PROVIDER shall grant CLIENT
an outage credit of the monthly service fees as appropriate, based upon the
ratio of total number of outage minutes divided by 43,200 (total minutes in a
30-day month). Failure to provide other Services hereunder will be subject to a
pro rata reduction in the applicable fees for those Services.
2
EXHIBIT H
WIRING INSTRUCTIONS
NAME: SKYPORT SERVICES
#0 Xxxxxxxxxxx Xxxxx Xxxxx 000
Xxxxxx Xxxx, XX 00000
(000) 000-0000
BANK NAME: BANK OF LITTLE ROCK
P. O. Xxx 00000 Xxxxxx Xxxx, XX 00000 (501)
376-0800
ACCOUNT #: 502 496 3
ABA #: 000000000
3
EXHIBIT I
INSURANCE
4
EXHIBIT J
COVERAGE MAP
5
