Exhibit 10.17
CBS TELEVISION NETWORK
A Division of CBS Inc.
AFFILIATION AGREEMENT
CBS TELEVISION NETWORK, A Division of CBS Inc., 51 West 52 Street, New
York, New York 10019 ("CBS"), and RETLAW ENTERPRISES, INC., P.O. Box 702,
Yakima, Washington 98907 ("Broadcaster"), licensed to operate television station
_______ at __________ on channel number ___ ("Affiliated Station"), hereby
mutually covenant and agree, as of the 13th day of February, 1996, as follows:
1. Offer, Acceptance and Delivery of Network Programs.
Broadcaster shall have a "first call" on CBS network television programs
("Network Programs") as follows:
(a) Offer of Network Programs.
CBS shall offer to Broadcast for broadcasting by Affiliated Station those
Network Programs which are to be broadcast on a network basis by any television
broadcast station licensed to operate in Affiliated Station's community of
license.
(b) Acceptance of Network Programs.
As to any offer described in Paragraph 1(a) of this Agreement, Broadcaster
may accept such offer only by notifying CBS, by means of CBS's computer-based
communications system, of such acceptance within 72 hours (exclusive of
Saturdays, Sundays and holidays), or such longer period as CBS may specify
therein, after such offer; provided, however, that, if the first broadcast
referred to in such offer is scheduled to occur less than 72 hours after the
making of the offer, Broadcaster shall notify CBS of the acceptance or rejection
of such offer as promptly as possible and in any event prior to the first
broadcast time specified in such offer. Such acceptance shall constitute
Broadcaster's agreement that Affiliated Station will broadcast such Network
Program or Programs in accordance with the terms of this Agreement and of such
offer, and so long as Affiliated Station so broadcasts such Network Program or
Programs, CBS will not, subject to its rights in the program material, authorize
the broadcast thereof on a network basis by any other television broadcast
station licensed to operate in Affiliated Station's community of license;
provided, however, that CBS shall have the right to authorize any television
broadcast station, wherever licensed to
operate, to broadcast any Network Program consisting of an address by the
President of the United States of America on a subject of public importance or
consisting of coverage of a matter of immediate national concern. If, as to any
Network Program offered hereunder, Broadcaster does not notify CBS as provided
for in this Paragraph 1(b), Broadcaster shall have no rights with respect to
such Network Program, and CBS may offer such Network Program on the same or
different terms to any other television broadcast station or stations licensed
to operate in Affiliated Station's community of license; provided, however,
that, if any Network Program offered hereunder is accepted, by Affiliated
Station, upon any other terms or conditions to which CBS agrees in writing, then
the provisions of this Agreement shall apply to the broadcast of such Network
Program except to the extent such provisions are expressly varied by the terms
and conditions of such acceptance as so agreed to by CBS.
(c) Delivery of Network Programs.
Any obligation of CBS to furnish Network Programs for broadcasting by
Affiliated Station is subject to CBS's making of arrangements satisfactory to it
for the delivery of Network Programs to Affiliated Station.
2. Payment to Broadcasters.
(a) Definitions.
(i) "Live Time Period" means the time period or periods specified by
CBS in its initial offer of a Network Program to Broadcaster for the broadcast
of such Network Program over Affiliated Station; (ii) "Affiliated Station's
Network Rate" shall be $____ and is used herein solely for purposes of computing
payments by CBS to Broadcaster; (iii) "Commercial Availability" means a period
of time made available by CBS during a Network Commercial Program for one or
more Network Commercial Announcements or local cooperative commercial
announcements; and (iv) "Network Commercial Announcements" means a commercial
announcement broadcast over Affiliated Station during a Commercial Availability
and paid for by or on behalf of one or more CBS advertisers, but does not
include announcements consisting of billboards, credits, public service
announcements, promotional announcements and announcements required by law.
(b) Payment for Broadcast of Programs.
For each Network Commercial Program or portion thereof, except those
specified in Paragraph 2(c) hereof, which is broadcast over Affiliated Station
during the Live Time Period therefor and the Live Time Period for which is set
forth in the
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table below, CBS shall pay Broadcaster the amount resulting from multiplying the
following:
(i) Affiliated Station's Network Rate; by
(ii) the percentage set forth below opposite such time period (which,
unless otherwise specified, is expressed in Affiliated Station's then-current
local time); by
(iii) the fraction of an hour substantially occupied by such program
or portion thereof; by
(iv) the fraction of the aggregate length of all Commercial
Availabilities during such program or portion thereof occupied by Network
Commercial Announcements.
Table
Monday through Friday
7:00 a.m. - 9:00 a.m. ......................................... 11.2%
9:00 a.m. - 11:00 a.m. ........................................ 15%
11:00 a.m. - 3:00 p.m. ........................................ 6%
3:00 p.m. - 5:00 p.m. ......................................... 12%
5:00 p.m. - 8:00 p.m. ......................................... 15%
8:00 p.m. - 11:00 p.m. ........................................ 30%
11:00 p.m. - 12:00 a.m. ....................................... 15%
Saturday
7:00 a.m. - 8:00 a.m. ......................................... 7%
8:00 a.m. - 5:00 p.m. ......................................... 12%
5:00 p.m. - 8:00 p.m. ......................................... 15%
8:00 p.m. - 11:00 p.m. ........................................ 30%
11:00 p.m. - 12:00 a.m. ....................................... 15%
Sunday
11:30 a.m. - 5:00 p.m. ........................................ 12%
5:00 p.m. - 7:00 p.m. ......................................... 15%
7:00 p.m. - 11:00 p.m. ........................................ 30%
11:00 p.m. - 12:00 a.m. ....................................... 15%
For each Network Program or portion thereof, except those specified in
Paragraph 2(c) hereof, which is broadcast by Affiliated Station during a time
period
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other than the Live Time Period therefor and the Live Time Period for which is
set forth in the table above, CBS shall pay Broadcaster as if Affiliated Station
had broadcast such program or portion thereof during such Live Time Period,
except that:
(i) if the percentage set forth above opposite the time period during
which Affiliated Station broadcast such program or portion thereof is less than
that set forth opposite such Live Time Period, then CBS shall pay Broadcaster on
the basis of the time period during which Affiliated Station broadcast such
program or portion thereof; and
(ii) if the time period or any portion thereof during which Affiliated
Station broadcast such program is not set forth in the table above, then CBS
shall pay Broadcaster in accordance with Paragraph 2(c) hereof.
(c) Payment for Broadcast of Other Programs.
For the following programs, the percentages listed below (rather than those
daypart percentages set forth in the table in Paragraph 2(b) hereinabove) shall
be used in computing payment to Affiliated Station:
Monday-Friday Daytime Game shows.................... 15%
Monday-Friday Continuing Dramas..................... 6%
Monday-Friday Late Night Daypart.................... 46.5% per telecast
for live clearance
or 11.5% per
telecast for delayed
clearance
Monday-Friday CBS EVENING NEWS...................... 5%
CBS Sports programs................................. 0%
CBS SUNDAY MORNING and FACE THE NATION.............. 8%
Notwithstanding the payment obligations set forth in Paragraph 2(b) above,
CBS shall pay Broadcaster such amounts as specified in CBS's program offer for
Network Programs broadcast by Affiliated Station consisting of (i) special event
programs (including, but not limited to, such programs as awards programs, mini-
series, movie specials, entertainment specials, special-time-period broadcasts
of
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regularly-scheduled series, and new specials such as political conventions,
election coverage, presidential inaugurations and related events), (ii) paid
political programming, and (iii) programs for which CBS specified a Live Time
Period, or which Affiliated Station broadcast during a time period, any portion
of which is not set forth in the table above.
(d) Deduction.
From the amounts otherwise payable to Broadcaster hereunder, there shall be
deducted, for each week of the term of this Agreement, a sum equal to 168% of
Affiliated Station's Network Rate.
(e) Changes in Rate.
CBS may reduce Affiliated Station's Network Rate in connection with a re-
evaluation and reduction of the Affiliated Station Network Rate of CBS's
affiliated stations in general, by giving Affiliated Station at least thirty-
days' prior notice of such reduction in Affiliated Station's Network Rate in
which event Broadcaster may terminate this Agreement, effective as of the
effective date of any such reduction, on not less than fifteen-days' prior
notice to CBS. In order to reflect differences in the importance of
compensation payments to stations in markets of varying size, the size of any
general reduction of the Network Rate of CBS's affiliated stations pursuant to
this Paragraph 2(e) may vary to a reasonable degree according to each station's
market-size category (i.e., 1-50, 51-100, 101-150 or 151+). Further, CBS agrees
that in the event of such an across-the-board rate reduction, Affiliated
Station's Network Rate shall be reduced accordingly until thirty days after the
effective date of the reduction, at which time, unless, with affiliated
Station's approval, an additional corresponding benefit of equal value has
accrued to the station, the Network Rate shall be restored to the previous level
and a retroactive adjustment shall be made to make up the compensation
difference.
(f) Time of Payment.
CBS shall make the payments hereunder reasonably promptly after the end of
each four-week or five-week accounting period of CBS for Network Commercial
Programs broadcast during such accounting period.
(g) Reports.
Broadcaster shall submit to CBS in the manner requested by CBS such reports
as CBS may reasonably request concerning the broadcasting of Network Programs by
Affiliated Station.
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3. Term and Termination.
(a) Term.
The term of this Agreement shall be the period commencing on March 1, 1996
and expiring on February 28, 2006; provided, however, that, unless Broadcaster
or CBS shall notify the other at least six months prior to the expiration of the
original period or any subsequent five-year period that the party giving such
notice does not wish to have the term extended beyond such period, the term of
this Agreement shall be automatically extended upon the expiration of the
original period and each subsequent extension thereof for an additional period
of five years. Notwithstanding any provision of any offer or acceptance under
Paragraph 1 hereof, upon the expiration or any termination of the term of this
Agreement, Broadcaster shall have no right whatsoever to broadcast over
Affiliated Station any Network Program.
(b) Termination on Transfer of License or Interest in Broadcaster.
Broadcaster shall notify CBS forthwith if any application is made to the
Federal Communications Commission relating to a transfer either of any interest
in Broadcaster or of Broadcaster's license for Affiliated Station. In the event
that CBS shall reasonably disapprove of the proposed transferee, CBS shall have
the right to terminate this Agreement effective as of the effective date of any
such transfer (except a transfer within the provisions of Section 73.3540(f) of
the Federal Communications Commission's present Rules and Regulations) by giving
Broadcaster notice thereof, and of its reasons for disapproving of the proposed
transferee, within thirty days after the date on which Broadcaster gives CBS
notice of the making of such application. If CBS does not so terminate this
Agreement, Broadcaster shall, prior to the effective date of any such transfer
of any interest in Broadcaster or of Broadcaster's license for Affiliated
Station, and as a condition precedent to such transfer, procure and deliver to
CBS, in form reasonably satisfactory to CBS, the agreement of the proposed
transferee that, upon consummation of the transfer, the transferee will
unconditionally assume and perform all obligations of Broadcaster under this
Agreement. Upon delivery of said agreement to CBS, in form satisfactory to it,
the provisions of this Agreement applicable to Broadcaster shall, effective upon
the date of such transfer, be applicable to such transferee.
Broadcaster's obligations to procure the assumption of this Agreement by
any transferee of Affiliated Station as a condition precedent to such transfer
shall be deemed to be of the essence of this Agreement; further, Broadcaster
expressly recognizes that money damages will be inadequate to compensate CBS for
the breach
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of such obligation, and that CBS shall accordingly be entitled to equitable
relief to enforce the same.
(c) Termination on Change of Transmitter Location, Power, Frequency or
Hours of Operation of Affiliated Station.
Broadcaster shall notify CBS forthwith if application is made to the
Federal Communications Commission to modify the transmitter location, power or
frequency of Affiliated Station or Broadcaster plans to modify the hours of
operation of Affiliated Station. CBS shall have the right to terminate this
Agreement, effective upon the effective date of such modification, by giving
Broadcaster notice thereof within thirty (30) days after the date on which
Broadcaster gives CBS notice of the application or plan for such modification.
If Broadcaster fails to notify CBS as required herein, then CBS shall have the
right to terminate this Agreement by giving Broadcaster thirty (30) days' notice
thereof within thirty (30) days of the date on which CBS first learns of such
application.
(d) Termination in the Event of Bankruptcy.
Upon one (1) month's notice, CBS may terminate this Agreement if a petition
in bankruptcy is filed by or on behalf of Broadcaster, or Broadcaster otherwise
takes advantage of any insolvency law, or an involuntary petition in bankruptcy
is filed against Broadcaster and not dismissed within thirty (30) days
thereafter, or if a receiver or trustee of any of Broadcaster's property is
appointed at any time and such appointment is not vacated within thirty (30)
days thereafter (it being understood that Broadcaster will have a similar right
of termination upon the occurrence of any such event with respect to CBS).
(e) Termination in the Event of Breach.
Each party, effective upon notice to the other, may, in addition to its
other rights, terminate this Agreement if any material representation, warranty
or agreement of the other party contained in this Agreement has been breached.
4. Use of Network Programs.
(a) General
Broadcaster shall not broadcast any Network Program over Affiliated Station
unless such Network Program has first been offered by CBS to Broadcaster for
broadcasting over Affiliated Station and has been accepted by Broadcaster in
accordance with this Agreement. Except with the prior written consent of CBS,
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Broadcaster shall neither sell any Network Program, in whole or in part, or any
time therein, for sponsorship, nor otherwise use Network Programs except as
specifically authorized in this Agreement. Affiliated Station shall not
broadcast any commercial announcement or announcements during any interval,
within a Network Program, which is designated by CBS to Affiliated Station as
being for the sole purpose of making a station identification announcement.
Broadcaster shall, with respect to each Network Program broadcast over
Affiliated Station, broadcast such Network Program in its entirety (including
but not limited to commercial announcements, billboards, credits, public service
announcements, promotional announcements and network identification), without
interruption, alteration, compression, deletion or addition of any kind, from
the beginning of the Network Program to the final system cue at the conclusion
of the Network Program. Nothing herein shall be construed as preventing
Broadcaster's deletion of (i) part of a Network Program in order to broadcast an
emergency announcement or news bulletin; (ii) a promotional announcement for a
Network Program not to be broadcast over Affiliated Station (provided that
Affiliated Station shall broadcast an alternative promotional announcement for
CBS network programming in place of the deleted promotional announcement); (iii)
such words, phrases or scenes as Broadcaster, in the reasonable exercise of its
judgment, determines it would not be in the public interest to broadcast over
Affiliated Station; provided, however, that Broadcaster shall not substitute for
any material deleted pursuant to this clause (iii) any commercial or promotional
announcement of any kind whatsoever; and provided further that Broadcaster shall
notify CBS of every such deletion within 72 hours thereof. Broadcaster shall
not, without CBS's prior written consent, authorize or permit any Network
Program, recording, or other material furnished by CBS to Broadcaster or
Affiliated Station hereunder to be recorded, duplicated, rebroadcast,
retransmitted or otherwise used for any purpose whatsoever other than
broadcasting by Affiliated Station as provided herein; except that Broadcaster
may assert a right to carriage of Affiliated Station's signal by a cable system
pursuant to the provisions of Section 4 of the Cable Consumer Protection and
Competition Act of 1992 (the "1992 Cable Act") and may, to the extent permitted
by paragraph 4(b) hereof, grant consent to the retransmission of such signal by
a cable system or other multichannel video programming distributor, as defined
by said Act, pursuant to the provisions of Section 6 thereof.
(b) Retransmission Consent.
Broadcaster may grant consent to the retransmission of Affiliated Station's
signal by a cable system or other multichannel video programming distributor
pursuant to the provisions of Section 6 of the 1992 Cable Act (hereafter
"retransmission consent"), provided that one of the following conditions applies
at the time retransmission consent is granted:
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(i) the cable system or other multichannel program service on which
Affiliated Station's signal is to be transmitted serves television homes within
Affiliated Station's television market;
(ii) the majority of television homes served by the cable system or
other multichannel program service on which Affiliated Station's signal is to be
retransmitted are within a county or community in which Affiliated Station's
signal is, and has been since October 5, 1992, "significantly viewed" as defined
in Section 76.54 of the FCC's rules; or
(iii) the cable system or other multichannel program service on which
Affiliated Station's signal is to be retransmitted carried signal on October 5,
1992, and does not receive such signal by satellite delivery.
Notwithstanding anything to the contrary in the foregoing, in no case shall
retransmission consent be granted to a television receive-only satellite
service, or a direct broadcast satellite service, if Affiliated Station's signal
is to be retransmitted by such service to television homes outside of Affiliated
Station's television market other than "unserved household(s)," as that term is
defined in Section 119(d) of Title 17, United States Code, as in effect on
October 5, 1992. For purposes of this paragraph, a station's "television
market" shall be defined in the same manner as set forth in Sections 76.55(e)
and 76.59 of the FCC's rules.
(c) Taped Recordings of Network Programs.
When authorized to make a taped delayed broadcast of a Network Program,
Broadcaster shall use Broadcaster-owned tape to record the Network Program when
transmitted by CBS only for a single broadcast by Affiliated Station and shall
erase the Program recorded on the tape within 24 hours of broadcasting the
Network Program and observe any limitations which CBS may place on the
exploitation of the Network Program so recorded and erased.
5. Rejection, Refusal, Substitution and Cancellation of Network Programs.
(a) Rights of Broadcaster and CBS.
With respect to Network Programs offered to or already accepted hereunder
by Broadcaster, nothing in this Agreement shall be construed to prevent or
hinder:
(i) Broadcaster from rejecting or refusing any such Network Program
which Broadcaster reasonably believes to be unsatisfactory or unsuitable or
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contrary to the public interest, or from substituting a program which, in
Broadcaster's opinion, is of greater local or national importance; or
(ii) CBS from substituting one or more other Network Programs, in
which event CBS shall offer such substituted program or programs to Broadcaster
pursuant to the provisions of Paragraph 1 hereof; or
(iii) CBS from canceling one or more Network Programs.
(b) Notice.
In the event of any such rejection, refusal, substitution or cancellation
by either party hereto, such party shall notify the other thereof as soon as
practicable by telex or by such computer-based communications system as CBS may
develop for notifications of this kind. Notice given to CBS shall be addressed
to CBS Affiliate Relations.
6. Disclosure of Information.
CBS shall endeavor in good faith, before furnishing any Network Program, to
disclose to Broadcaster information of which CBS has knowledge concerning the
inclusion of any matter in such Network Program for which any money, service or
other valuable consideration is directly or indirectly paid or promised to, or
charged or accepted by, CBS or any employee of CBS or any other person with whom
CBS deals in connection with the production or preparation of such Network
Program. As used in this Paragraph 6, the term "service or other valuable
consideration" shall not include any service or property furnished without
charge or at a nominal charge for use in, or in connection with, any Network
Program "unless it is so furnished in consideration for an identification in a
broadcast of any person, product, service, trademark, or brand name beyond an
identification which is reasonably related to the use of such service or
property on the broadcast," as such words are used in Section 317 of the
Communications Act of 1934 as amended. The provisions of this Paragraph 6
requiring the disclosure of information shall not apply in any case where,
because of a waiver granted by the Federal Communications Commission, an
announcement is not required to be made under said Section 317. The inclusion
in any such Network Program of an announcement required by said Section 317
shall constitute the disclosure to Broadcaster required by this Paragraph 6.
7. Indemnification.
CBS will indemnify Broadcaster from and against any and all claims,
damages, liabilities, costs and expenses arising out of the broadcasting,
pursuant to this
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Agreement, of Network Programs furnished by CBS to the extent that such claims,
damages, liabilities, costs and expenses are (i) based upon alleged libel,
slander, defamation, invasion of the right of privacy, or violation or
infringement of copyright or literary or dramatic rights; (ii) based upon the
broadcasting of Network Programs as furnished by CBS, without any deletions by
Broadcaster; and (iii) not based upon any material added by Broadcaster to such
Network Programs (as to which deletions and added material Broadcaster shall, to
the like extent, indemnify CBS, all network advertisers, if any, on such Network
Program, and the advertising agencies of such advertisers). Furthermore, each
party will so indemnify the other only if such other party gives the
indemnifying party prompt notice of any claim or litigation to which its
indemnity applies; it being agreed that the indemnifying party shall have the
right to assume the defense of any or all claims or litigation to which its
indemnity applies and that the indemnified party will cooperate fully with the
indemnifying party in such defense and in the settlement of such claim or
litigation. Except as herein provided to the contrary, neither Broadcaster nor
CBS shall have any rights against the other party hereto for claims by third
persons or for the non-operation of facilities or the non-furnishing of Network
Programs for broadcasting if such non-operation or non-furnishing is due to
failure of equipment, action or claims by any third person, labor dispute or any
cause beyond such party's reasonable control.
8. News Reports Included in Affiliated Station's Local News Broadcasts.
As provided in the agreements pertaining to CBS Newsnet and CBS regional
news cooperatives (but as a separate obligation of this Affiliation Agreement as
well), Broadcaster shall make available, on request by CBS News, coverage
produced by Affiliated Station of news stories and breaking news events of
national and/or regional interest, to CBS News and to regional news cooperatives
operated by CBS News. Affiliated Station shall be compensated at CBS News'
then-prevailing rates for material broadcast by CBS News or included in the
national Newsnet service.
9. Non-Duplication of Network Programs.
(a) For purposes of this paragraph, a television station's "Network
Exclusivity Zone" shall mean the zone within thirty-five (35) miles of the
station's reference points, or, in the case of a "small market television
station," as defined in Section 76.92 of the FCC rules, the zone within 55 miles
of said reference points; provided, however, that in no case shall the "Network
Exclusivity Zone" include an area within the Designated Market Area ("DMA"), as
most recently determined by the A.C. Nielsen Company, of another CBS Television
Network Affiliate. A station's "reference points" for purposes of this
paragraph shall be as defined in
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Section 73.658(m) of the FCC rules, and shall be deemed to include, with respect
to a station in a hyphenated market, the reference points of each named
community in that market.
(b) Broadcaster shall be entitled to exercise, within Affiliated Station's
Network Exclusivity Zone, the protection against duplication of network
programming, as provided by Sections 76.92 through 76.97 of the FCC rules, with
respect to a Network Program during the period beginning one (1) day before and
ending seven (7) days after the delivery of such Network Program by CBS to
Broadcaster; provided, however, that such right shall apply only to Network
Programs broadcast in the live time period as offered or on no more than a one
day delay as accepted by CBS; and provided further that nothing herein shall be
deemed to preclude CBS from granting to any other broadcast television station
licensed to any other community similar network non-duplication rights within
that station's Network Exclusivity Zone, and Broadcaster's aforesaid right of
network non-duplication shall not apply with respect to the transmission of the
programs of another CBS affiliate (current or future) by a "community unit," as
that term is defined by the rules of the FCC, located (wholly or partially)
within the area in which Broadcaster's Network Exclusivity Zone overlaps the
Network Exclusivity Zone of that other CBS affiliate.
(c) Broadcaster's network non-duplication rights under this paragraph
shall be subject to cancellation by CBS on six (6) months written notice to
Broadcaster. Any such cancellation by CBS shall not affect any of the other
rights and obligations of the parties under this Agreement.
10. Assignment, Conveyance and Conditions for Use of Descramblers.
(a) For value received, CBS hereby conveys, transfers, and assigns to
Broadcaster, all of its rights, title and interest in and to the tangible
personal property consisting of two (2) Videocipher 1B Descramblers (the
"Descramblers") subject to the following conditions:
(i) Broadcaster may not assign its rights in the Descramblers to any
party without CBS's written approval.
(ii) At the termination or expiration of this Agreement, Broadcaster's
rights in the Descramblers shall cease and Broadcaster shall take appropriate
steps to assign the Descramblers to CBS.
(b) Broadcaster shall use the Descramblers solely in connection with the
broadcast rights granted and specified in the Agreement.
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(c) CBS makes no warranties whatsoever, either express or implied, in
respect of the equipment including, but not limited to, any warranties of
merchantability or fitness for a particular purpose.
(d) Broadcaster shall be solely responsible for any and all installation
and other related costs or charges in connection with the use and installation
of the Descramblers. Broadcaster shall at all times use and maintain the
Descramblers as instructed by CBS and the manufacturer and shall use its best
efforts to assure that the Descramblers are kept in good condition and that no
tampering with the Descramblers or other breach of security, as defined in
subparagraph (g) below, occurs. Broadcaster shall promptly notify the CBS
Satellite Management Center by telephone of any defect or failure in the
operation of the Descramblers and shall follow such procedures as are
established by CBS for the replacement or repair of the Descramblers. CBS shall
be responsible for the cost of correcting any defect or of rectifying any
failure of the Descramblers to operate during the Term of the Agreement,
provided that Broadcaster shall be responsible for any costs associated with its
failure to follow the prescribed procedures.
(e) In addition to its rights under paragraph 7 of the Agreement, CBS will
not be liable for any damages resulting from the operation of the Descramblers
or from the failure of the Descramblers to function properly or, any loss, cost
or damage to Broadcaster or others arising from defects or non-performance of
the Descramblers.
(f) If Broadcaster makes any use of the Descramblers in violation of the
terms and conditions of this Agreement, said use shall be a material breach of
this Agreement.
(g) Should Broadcaster's willful acts or negligence result in any breach
in the security of the two Descramblers covered by this Agreement, such breach
of security shall be a material breach of this Agreement. Breach of security
shall include but not be limited to any theft of all or part of the
Descramblers, any unauthorized reproduction of all or part of the Descramblers,
any unauthorized reproduction of the code involved in descrambling the network
feed from CBS to Broadcaster, or any related misappropriation of the physical
property or intellectual property contained in the Descramblers.
11. General.
(a) As of the beginning of the term hereof, this Agreement takes the place
of, and is substituted for, any and all television affiliation agreements
heretofore existing between Broadcaster and CBS concerning Affiliated Station,
subject only to the fulfillment of any obligations thereunder relating to events
occurring prior to the
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beginning of the term hereof. This Agreement cannot be changed or terminated
orally and no waiver by either Broadcaster or CBS of any breach of any provision
hereof shall be or be deemed to be a waiver of any preceding or subsequent
breach of the same or any other provision of this Agreement.
(b) The obligations of Broadcaster and CBS under this Agreement are
subject to all applicable federal, state and local law, rules and regulations
(including but not limited to the Communications Act of 1934 as amended and the
Rules and Regulations of the Federal Communications Commission) and this
Agreement and all matters or issues collateral thereto shall be governed by the
law of the State of New York applicable to contracts performed entirely therein.
(c) Neither Broadcaster nor CBS shall be or be deemed to be or hold itself
out as the agent of the other under this Agreement.
(d) Unless specified otherwise, all notices given hereunder shall be given
in writing, by personal delivery, mail, telegram, telex system or private wire
at the respective addresses of Broadcaster and CBS set forth above, unless
either party at any time or times designates another address for itself by
notifying the other party thereof by certified mail, in which case all notices
to such party shall thereafter be given at its most recently so designated
address. Notice given by mail shall be deemed given on the date of mailing
thereof with postage prepaid. Notice given by telegram shall be deemed given on
delivery of such telegram to a telegraph office with charges therefor prepaid or
to be billed to the sender thereof. Notice given by private wire shall be
deemed given on the sending thereof.
(e) The titles of the paragraphs in this Agreement are for convenience
only and shall not in any way affect the interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
RETLAW ENTERPRISES, INC. CBS TELEVISION NETWORK
A Division of CBS Inc.
By _______________________________ By __________________________________
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