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Exhibit 10.9
PROGRAM LICENSE AGREEMENT
This agreement ("Agreement") is between Broadcast America Partnership, Ltd.
("Network") with offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
and VidKid Distributions, Inc. ("Licensor").
1. PROGRAM(S): 65 episodes of the program entitled "Howdy ▇▇▇▇▇".
2. TERM OF AGREEMENT: Effective Date: December 28, 1998; Termination Date:
December 24, 1999.
3. LICENSOR: VidKid Distribution, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Phone: 954/▇▇▇-▇▇▇▇ Fax: 954/▇▇▇-▇▇▇▇
4. NETWORK: America One Television.
5. DATE OF DELIVERY OF PROGRAM: One week prior to air.
6. FORMAT: The program (and any commercial spots) to be provided on beta sp
tape with audio mixed to channel two, or channel one and two. No stereo tapes
will be accepted.
7. PAYMENT TERMS: Network and Licensor shall share the net revenues from the
three (3) minutes of advertising time on a fifty-fifty basis. Net revenues
shall mean revenues actually collected from the sale of advertising spots
during such time periods, less agency, sales person, and representative fees
and commissions (up to 30%)(e.g., commissions paid to companies for selling
advertising time during the Program. Net revenues shall be distributed by
Network in the month following the month they are collected. Network will
provide Licensor a billing summary 10 business days after the conclusion of
each broadcast month.
8. PROGRAM SCHEDULE:
America One will distribute the Program between the hours of 7am - 6pm est
Monday through Friday.
Notwithstanding the foregoing, Network may preempt the Program Schedule with
live events in its sole discretion. In the event of preemption, Network will
provide a "make good" broadcast at no charge.
9. COMMERCIAL SPOTS: Licensor: :30 .
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Affiliate: 2:00 .
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Network: 3:00 .
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5:30 Total Minutes
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10. LENGTH OF PROGRAM: Commercial Time: 5:30 .
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PSA Time: :30 .
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Content Time: 22:30 (minimum).
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Running Time: 28:30 .
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11. ADDITIONAL TERMS:
- The program is supplied to America One on a barter basis.
- This agreement will automatically renew thirty days prior to expiration
for an additional year upon the same terms, unless either party notifies
the other party that it does not wish to renew the Agreement at least
ninety (90) days prior to the end of the Term.
- If Licensor notifies Network that it does not wish to renew this
Agreement, then, from time to time if Licensor receives a bonafide offer to
broadcast or distribute the Program, Licensor shall promptly notify Network
of such offer (along with evidence of the financial terms of such offer
[including term of years]), and Network shall have the right to match such
offer (within ten (10) business days of its receipt of such offer) and
broadcast the Program under the financial terms set forth in such offer
(and the parties shall enter into an agreement in the form of this
Agreement but with the economic terms set forth in the offer), provided
Network shall have paid Licensor at least $60,000 during the Term of this
Agreement. Networks matching right shall remain until Network rejects such
offer and Licensor consummates a written agreement with such third party.
- Licensor is supplying this Program on an exclusive basis for over the air
broadcasts in North America (excluding cable television broadcasts to
fee-based cable subscribers) and Internet broadcasts.
- Network will offer Licensor ten (10) thirty (30) second spots, ROS per
week, subject to availability. Additionally, Licensor shall receive two (2)
additional spots guaranteed within other children's programming; provided
(i) only one (1) spot will be shown per program, and (ii) the commercials
are targeted to and are suitable for children.
12. TERMS AND CONDITIONS: The Terms and Conditions set out in the attached
EXHIBIT "A" are a part of this Agreement. Licensor hereby acknowledges receipt
of Exhibit "A."
(Licensor's Initials_______)
AGREED TO AND ACCEPTED:
("Network") ("Licensor")
BROADCAST AMERICA PARTNERSHIP, LTD. VidKid Distribution, Inc.
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By: Broadcast America, Inc, general partner.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Asst General Manager Title: President
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EXHIBIT "A"
TERMS AND CONDITIONS TO PROGRAM LICENSE AGREEMENT
1. GRANT: Licensor hereby grants to Network the right and license within the
United States (including its territories and possessions), and in the territory
covered by the satellite signal of the Network, itself and/or through third
parties to distribute, broadcast, transmit, copy, display, exhibit, advertise,
promote, project and perform, on a live and/or tape-delayed basis, (including
but not limited to exploitation by means of all forms of video cassette,
videodiscs, video cartridges, Internet and videotapes, now known or hereafter
devised) but subject to any restrictions set forth herein, the Program(s)
listed in this Agreement or any portions or segments thereof, during the Term
subject to the terms and conditions contained herein.
2. TERM: The rights granted to Network herein shall be vested for the term
of this Agreement.
3. DELIVERY REQUIREMENTS (TAPE): Licensor, at its sole cost and expense shall
provide and deliver (i) one (1) commercial broadcast television quality
videotape, with a complete audio mix as described in the Agreement. Each
videotape shall be delivered prepaid to Network on or before the delivery dates
specified in this Agreement. Delivery shall not be deemed complete unless and
until the materials delivered by Licensor in accordance with the provisions
hereof are technically and editorially acceptable to Network. Timely delivery
of such technically acceptable material is of the essence of this Agreement.
The videotape referred to herein shall be a duplicate of the master.
4. PAYMENTS: Licensor and Network shall each have available to it only the
number of Commercial Spots within each Program as set forth in this Agreement.
5. REPRESENTATIONS AND WARRANTIES: Licensor represents and warrants to
Network that:
(a) it has the right to enter into this Agreement and to grant the rights
herein granted to Network free and clear of all liens and encumbrances;
(b) the exercise by Network of any of the rights herein granted to it will not
violate or infringe the copyright (including music performance rights),
trademark, service ▇▇▇▇, trade name, patent, literacy, intellectual, artistic
or dramatic right, right of privacy or civil, property or any other rights
whatsoever of any person or entity; and
(c) Licensor has paid or shall pay (or third parties not affiliated with
Network paid) any and all residuals, including all necessary music title and
performance rights, reuse, and other fees or compensation of any kind, however
denominated, which are due or may be come due by reason of Network's full
exercise of any and all of its rights hereunder.
6. INDEMNIFICATION: Licensor shall indemnify, defend, and hold harmless the
Network and its agents, contractors, officers, directors, employees, partners,
affiliates, representatives, and broadcast affiliates to the fullest extent
allowed by law, from and against all losses, claims, damages, liabilities,
expenses, including, without limitation, reasonable attorneys' fees based upon,
relating to, or arising out of (i) claims arising out of the information
contained in or linked to any Program or other information supplied by Licensor
or its agents or representatives, (ii) actions or claims that the Programs are
not owned by Licensor, (iii) claims for infringement upon any patent,
trademark, service ▇▇▇▇, copyright, trade name, trade secret, right of
publicity, right to broadcast or rebroadcast, or other proprietary right or
interest of a third party relating to the Program, (iv) actions taken by
governmental agencies and/or industry or trade associations for advertisements
not conforming to any applicable law and/or voluntary agreement, (v) actions or
claims brought by ASCAP, BMF, or SESAC or other licensing groups in connection
with the Programs, and (vi) breach of any representation or warranty made by
Licensor or its agents or representatives. The obligations under this paragraph
shall survive any termination of this Agreement unless specifically released in
a writing executed by both parties.
7. FORCE MAJEURE: If because of act of God, inevitable accident; fire;
lockout, strike or other labor dispute; riot or civil commotion; act of
governmental instrumentality (whether federal, state or local); failure in
whole or in part of technical facilities; failure or broadcast facilities,
technical or programming difficulties, or other causes beyond Network's
reasonable control Network fails to fully perform hereunder, the same shall not
constitute a breach of this Agreement by Network, and Network will not be liable
to Licensor for such failure to perform.
8. CANCELLATION: Network may cancel this Agreement under normal
circumstances by delivering to Licensor, Network or their designated
representative thirty (30) days prior notice in writing, provided that the
Program shall air for at least 13 weeks. However, Network shall have the right
to cancel this Agreement immediately by the most expedient means of
communications to Licensor in the event that Licensor fails to timely perform
any one or all of its responsibilities enumerated else where in the Agreement.
Any cancellation of this Agreement shall be prospective only and shall not
affect the Network's perpetual rights to any Program(s) delivered prior to the
effective date of such cancellation.
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9. MISCELLANEOUS:
(a) Licensor shall give mention and/or credit to Network in all press
releases or publicity covering the Program(s).
(b) Network may use and authorize the use in any media of the names, logos,
trade names, trademarks, service marks and other intellectual property of
Licensor and other entities or individuals participating in the Program, and
the names, likenesses and voices of, and biographical information concerning,
all athletes, contestants, players, coaches, managers, actors and others
connected with the Program to broadcast, advertise, promote and publicize the
Program.
(c) If Licensor decides to seek any recourse, action or claim to which it is
entitled under or by reason of this Agreement, Licensor agrees that such
recourse, action or claim shall extend only to Network and not to any of
Network's partners (limited, general or otherwise), owners, or affiliates.
(d) The prevailing party in any litigation (or arbitration to which the
parties may hereafter agree) between the parties arising out of or relating to
the interpretation, application or enforcement of any provision of this
Agreement shall be entitled to recover all of its reasonable attorneys' fees
(including an allocable portion of in-house attorneys' fees if any) and costs,
including, but not limited to, costs and attorneys' fees related to or arising
out of any trial or appellate proceedings.
(e) This Agreement is made and delivered in Irving, Texas and shall be
governed by and construed in accordance with the laws of the State of Texas
(without regard to Texas' choice of law rules). Any delay or waiver (whether
due to course of dealing or otherwise) of any right or remedy by Network shall
not act as a waiver of any right or remedy available to Network.
(f) This Agreement embodies the entire understanding of the parties with
respect to the subject matter hereof, supersedes any prior agreement or
understanding, and may not be altered, amended, or otherwise modified except by
an instrument in writing executed by both parties.
(g) The invalidity of any provision of this Agreement will not affect the
validity of any other provision of this Agreement, but both parties must
negotiate in good faith the equitable modification of any provision held to be
invalid. No provision of this Agreement is intended or shall be construed to
provide or create any third party beneficiary right. Additionally, this
Agreement does not create, and shall not be construed to create, any joint
venture, partnership, principle-agent, or any other similar relationship between
the parties or their owners.
(h) Licensor acknowledges that, except as specifically set forth in this
Agreement, the Network has not made, does not make, and specifically negates
and disclaims any representations, warranties, promises, covenants, agreements,
or guarantees of any kind of character whatsoever, whether express or implied,
oral or written, of, as to, concerning, or with respect to (i) the subject
matter of this Agreement, (ii) the amount of any projected revenues, or (iii)
Network's affiliates. This paragraph shall survive the expiration or earlier
termination of this Agreement.
(i) Unless otherwise specifically stated in this Agreement, (i) it shall be
up to the sold discretion of the Network in its good faith business judgment,
to select the form, production, and placement (e.g., time, duration, and
location) of any Program or commercials, (ii) Network shall make revisions to
the Program Schedule as it deems appropriate, and (iii) all commercials must be
delivered at the same time the Program is delivered to Network. The Network
reserves the right to refuse to broadcast any material which, in the Network's
sole discretion, promotes or contains firearms, pornography, or any other
products, services, or content which may be deemed inappropriate material for
general public access.
(j) Licensor agrees that the terms and conditions of this Agreement will be
kept confidential by it and its agents, employees, and affiliates, and, except
as may be required by law, will not be disclosed in any manner whatsoever, in
whole or in part, without the prior written consent of the Network.
