Exhibit 10.1
CBS SPORTS
A Division of CBS Broadcasting, Inc.
AGREEMENT
AGREEMENT made as of October 31,2011, by and between CBS SPORTS, A Division
of CBS Broadcasting Inc., 51 West 52nd Street, New York, New York 10019 (herein
called "CBS"), and ARMADA SPORTS AND ENTERTAINMENT, INC., 254 South Ronald
Reagan Boulevard, Suite 134, Longwood, Florida 32750 (herein called "Licensor").
In consideration of the mutual covenants herein contained, the parties
hereto have agreed and do hereby agree as follows:
I. (a) EVENT; DATES; SITES:
EVENT: 2012-2013 and 2013-2014 MILLION DOLLAR INVITATIONAL (Taped golf
competitions)
Four (4) two (2)-hour shows per year
2012-2013 TAPE DATES I SITES:
August 4, 2012 Half Moon Bay, California
September 8, 2012 Glasgow, Scotland
October 6, 2012 Orlando, Florida
December 1, 2012 Rose Hall, Jamaica
2013-2014 TAPE DATES I SITES: TBD
herein individually called an "Event" and collectively the "Events."
(b) CBS shall make available eight (8) two (2)-hour time periods for the
broadcast coverage of each Event in high-definition (HD) format on the CBS
Television Network (the broadcast coverage during said time period is
hereinafter sometimes referred to individually as a "Program" and collectively
the "Programs" and sometimes referred to by the year in which such Events take
place as the "2012-2013 Programs" and the "2013-2014 Programs"). It is currently
contemplated that the broadcast time period for the 2012-2013 Programs will be
1:OO PM - 3:00PM ET on a Saturday to be determined by CBS in each of October,
November and December 2012 for the August 4, September 8 and October 6 Events,
respectively, and at a time to be determined by CBS on New Year's Day 2013 for
the December 1 Event. The 2013-2014 Programs shall be broadcast at similar dates
and times as the 2012-2013 Programs in the following year. The exact time period
for the broadcast coverage of the Events will be at CBS's sole discretion.
Notwithstanding anything to the contrary contained herein, CBS shall have no
obligation to provide broadcast coverage of an Event beyond the times set forth
herein.
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II. NETWORK BROADCAST TERRITORY:
CBS shall have the exclusive right to make one (1) broadcast of each Event in
the broadcast area consisting of the United States, its territories and
possessions (excluding Puerto Rico) and Bermuda (hereinafter referred to as the
"Network Broadcast Territory").
III. COVERAGE SHALL BE PRODUCED BY LICENSOR
(a) Licensor shall furnish to CBS complete color broadcast coverage of each
Event in HD format pursuant to the Terms and Conditions, attached hereto and
made a part of this Agreement. CBS shall have the right to edit the broadcast
coverage of the Events as CBS in its sole discretion shall determine. The
broadcast coverage shall be complete in all respects and ready for taped
broadcast over the facilities of CBS Television Network.
(b) Licensor shall provide and pay all costs and expenses in connection
with all "above-the-line" and "below-the-line" elements, including, without
limitation, all the facilities, equipment and personnel necessary to produce and
edit the broadcast coverage of the Events, except for a Coordinating Producer
and a CBS graphics package, which CBS will provide and for which CBS will be
responsible; provided that CBS shall have no authority to incur costs on behalf
of or otherwise obligate Licensor for any such items without the prior written
consent of Licensor. In addition, upon request by Licensor, CBS may provide
On-Air Talent for the Events, provided that any additional costs incurred by CBS
for such On-Air Talent in connection with the Events shall be borne by Licensor.
All above and below-the-line elements shall be of a quality and at levels
substantially similar to those in effect for sports programs of a similar nature
and importance broadcast on the CBS Television Network. Licensor shall consult
with CBS and CBS shall have the right to approve all On-Air Talent and all
production facilities and personnel, which consent shall not be unreasonably
withheld or delayed. In this regard, Licensor shall furnish CBS Sports
Operations with the name of the representative of the supplier of all technical
facilities who shall be available to handle any problems with respect thereto.
CBS will advise Licensor if any such problems arise. The Programs must meet
CBS's artistic and technical standards for television programs and conform to
CBS's general policies concerning programs, including, without limitation,
Licensor's warranties set forth in paragraphs V below and 6 of the Terms and
Conditions.
(c) Licensor and CBS shall consult with each other on all aspects of the
production of the Programs. CBS shall have the right to approve the third party
producing the Programs.
IV. COMPENSATION
(a) In full consideration for making the network broadcast time periods set
forth in subparagraph I. (b) available for the broadcast of the Programs and for
all of the rights granted to Licensor herein, Licensor sha11 pay to CBS the
following net sums: (i) Four Hundred Fifty Thousand Dollars ($450,000) per two
(2)-hour network time period made available for the 2012- 2013 Programs for a
total of One Million Eight Hundred Thousand Dollars ($1,800,000); and (ii) Four
Hundred Seventy Thousand Dollars ($470,000) per two (2)-hour network time period
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made available for the 2013-2014 Programs for a total of One Million Eight
Hundred Eighty Thousand Dollars ($1,880,000). The total net sum payable to CBS
hereunder is Three Million Six Hundred Eighty Thousand Dollars ($3,680,000). The
net sum for the 2012-2013 Programs shall be paid to CBS as follows: (i) Fifty
Thousand Dollars ($50,000) by no later than thirty (30) days prior to the taping
of each Event, with the balance of Four Hundred Thousand Dollars ($400,000) by
no later than forty-five (45) days prior to the broadcast of each 2012-2013
Program. The net sum for the 2013-2014 Programs shall be paid to CBS as follows:
(i) Fifty Thousand Dollars ($50,000) by no later than thirty (30) days prior to
the taping of each Event, with the balance of Four Hundred Twenty Thousand
Dollars ($420,000) by no later than forty-five (45) days prior to the broadcast
of each 2013-2014 Program. The foregoing amounts are net and are not subject to
a deduction for agency commission or otherwise. Timely payment is of the essence
of this Agreement. Without limiting any of CBS's rights or remedies under this
Agreement, if Licensor fails to make any payment as specified above, any and all
monies then due or to become due to CBS hereunder shall become immediately due
and payable upon notice from CBS to Licensor and CBS shall have the right to
terminate this Agreement effective at any time upon notice to Licensor. No
termination of this Agreement as provided in this subparagraph shall affect
CBS's right to payment of all accrued amounts due and payable hereunder.
(b) (i) Licensor shall have the right to sell eighteen (18) thirty
(30)-second commercial units during each one (1)-hour time period of network
broadcast time CBS will make available to Licensor for the broadcast of each
Program for a total of thirty-six (36) thirty (30)-second commercial units per
two (2)-hour Program. Licensor will retain all revenue received from the sale of
the commercial units.
(ii) Licensor will receive one (1) opening billboard, one (1) middle
billboard and one (1) closing billboard in each Program.
(c) Only an advertiser which purchases a minimum of four (4) commercial
units for the hour of the broadcast coverage of the Events shall be entitled to
have its name included in the title of the Events as broadcast by CBS. Any value
added segments must be approved in advance by CBS.
(d) All commercial units to be sold by Licensor for broadcast during each
Program will be subject to the CBS Sales and Program Practices Departments'
policies and guidelines, including, without limitation, CBS's policies with
respect to commercial format, timing, billboards, sponsors, title sponsorship
and advertiser categories. Prior to offering commercial units for sale, Licensor
shall provide CBS with a list of the advertisers Licensor intends to solicit to
purchase commercial units in each Program. CBS will review the list for
compliance with CBS's sales policies and guidelines and advise Licensor if any
of the advertisers are unacceptable to CBS. CBS's acceptance of the advertisers
on the list will not be unreasonably withheld.
(e) Except as set forth herein, the sale, production, delivery and
broadcast of the commercials to be contained in each Program shall be in
accordance with all of the terms and conditions of Schedule B of CBS's Network
Television Agreement, attached hereto as Exhibit I and made a part hereof as if
fully set forth herein. All commercials must be submitted to and approved by the
CBS Program Practices Department in accordance with paragraph 17 of Schedule B.
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Licensor will use its best efforts to so submit the commercials no later than
the Wednesday prior to the broadcast of each Program. In the event of any
conflict or inconsistency between Schedule B and the terms and conditions
contained herein the terms and conditions contained herein shall govern. The
term "Agency" as used in said Schedule B shall mean "Licensor."
(f) Licensor will furnish a duplicate copy of the list of all commercials
to be included in the broadcast of each Program, with the appropriate ISCI
numbers to the Vice President Program Practices, New York and the Vice President
Administration, CBS Television Network, a Division of CBS Broadcasting Inc.
(g) CBS will provide to Licensor an appropriate program format for the
broadcast of the Programs, including all the elements of the format (e.g.,
timing, station breaks, commercial breaks) no later than ten (10) days prior to
the taping of the Programs.
(h) The following notices will be included in the credit roll at the
conclusion of the broadcast of each Program containing the broadcast coverage of
the Events:
"THIS HAS BEEN A PRESENTATION OF CBS SPORTS IN ASSOCIATION WITH
ARMADA SPORTS AND ENTERTAINMENT, INC."
V. ADDITIONAL TERMS
(a) CBS shall have the right to schedule and broadcast in the Program: (i)
promotional announcements for the CBS Television Network (and any programming
transmitted over the CBS Television Network) and/or any other
programming/informational services (the "program services") (and any programming
or information transmitted over the program services) owned in whole or in part
by CBS Broadcasting Inc. or any other entity controlling, controlled by or under
common control with CBS Broadcasting Inc.; (ii) promotional announcements for
CBS licensed merchandise; (iii) customary network identification announcements;
(iv) news inserts; (v) public service announcements; and (vi) graphics. Each CBS
owned and affiliated television station shall also have the right to schedule
and broadcast in each Program local advertisements, promotional announcements
for such station (and any programming broadcast on such station) and customary
television station identification announcements and news inserts.
(b) Each Program shall be exclusive to CBS in the Network Broadcast
Territory and Licensor will not authorize any broadcast or exploitation of such
Program in any media now known or hereafter created or in a manner which would
be directly competitive with CBS's broadcast of such Program in the Network
Broadcast Territory for a period ending five (5) days after the completion of
the network broadcast of such Program. Subject to the foregoing, all rights not
specifically granted to CBS herein are reserved by Licensor and permission from
CBS or any other entity to exploit such rights shall be at Licensor's sole
discretion.
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(c) CBS will provide promotion for each Program at a level consistent with
the promotion for similar sporting events broadcast over the CBS Television
Network.
(d) With respect to each musical composition contained in each Program,
Licensor represents and warrants that the performing rights in and to such
musical compositions are:
(i) available for license through the American Society for Composers,
Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), or SESAC, Inc.;
(ii) controlled by Licensor to the extent necessary to permit CBS's use of
each Program as expressly authorized herein; or
(iii) in the public domain.
Licensor shall furnish CBS with music cue sheets for each Program at least
thirty (30) days prior to the broadcast of such Program. The cue sheets shall
indicate the title, composer(s), publisher(s) and length of each musical
composition, the type of use of each musical composition (theme, feature,
background or logo use) and the organization(s), if any, which administer(s) the
performing rights to said music (i.e. ASCAP, BMI, or SESAC). In any event,
Licensor will be solely responsible for all music licenses, including, without
limitation, master recording and synchronization licenses.
(e) CBS may refuse to broadcast or may withdraw its approval of any Program
or any element thereof which does not, in the opinion of CBS, maintain an
artistic and technical quality creditable to CBS, or fails to conform to CBS's
Program Practices standards and policies concerning programs or to the
provisions set forth in the following subparagraph of this Agreement, or
contains any matter to which the second sentence of paragraph 12 of the Terms
and Conditions pertains. CBS will notify Licensor in a timely manner of the
changes necessary to make such Program acceptable to CBS. If Licensor fails to
change the Program as requested by CBS, CBS in its sole discretion may, without
prejudice to any other rights which it may have, refuse to broadcast such
Program or edit the Program so that it will be acceptable to CBS. CBS will
endeavor to notify Licensor in advance of broadcast of any changes made by CBS
pursuant hereto and first provide Licensor with a reasonable opportunity to cure
any deficiencies or non- compliant material.
(f) In the event of any inconsistency or conflict between the terms and
conditions of paragraphs I-V of the Agreement and any of the attached Terms and
Conditions or Exhibit I, the terms and conditions of paragraphs 1-V of the
Agreement shall govern.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
ARMADA SPORTS & ENTERTAINMENT, INC CBS SPORTS, A Division of CBS
Broadcasting Inc.
By: /s/ R. Thomas Kidd By: /s/ Sean McManus
------------------------------- --------------------------------
Name: R. Thomas Kidd Name: Sean McManus
Title: CEO Title: Chairman
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TERMS AND CONDITIONS
I. (a) The term "Event" or "Events" as used herein includes each sports
event named in paragraph I hereof and all events and activities taking place at
the Site on the Date(s) of such Events. Licensor shall be responsible for
furnishing to CBS, at no additional cost, the Site, the Events, the participants
and all other facilities and elements necessary for the conduct of the Events.
The Date and/or Site of any Event shall not be changed without CBS's prior
written approval, which shall be deemed of the essence of this Agreement.
(b) Provided the official name of an Event has been approved by CBS, CBS
will use the Official name of an Event and instruct its on-air personnel to do
so. Any inadvertent failure to use the official name of any Event will not be a
breach of this Agreement.
(c) Licensor will use Licensor's reasonable efforts to make Event
participants available to CBS for Event-related interviews at such place or
places or at such time or times as required by CBS at no additional cost to CBS.
(d) Subject to good faith consultation with Licensor, CBS shall have (i)
advance approval over the manner of production (including pre- and
post-production) and complete control over the format of CBS's broadcasts
hereunder and (ii) the right to edit the coverage of the Events as CBS in its
sole discretion shall determine.
2. Licensor warrants that each Event is sanctioned and/or licensed by such
sports organization(s) and/or authorities as have jurisdiction over the Events
and that the Events will be conducted in accordance with all of the applicable
rules and regulations of such organizations and/or authorities, if any. The
Events will be conducted subject to and in compliance with all applicable
federal, state and local law.
3. The word "broadcast" as used herein means broadcast, transmission or
exhibition by means of television and/or television devices, methods and
improvements now or hereafter known without limitation. A "network broadcast" is
a broadcast by means of simultaneously interconnected television devices,
methods and/or improvements. A network broadcast includes delayed broadcasts
made not later than sixty (60) days after such simultaneous broadcast, over any
facilities that shall not have been used therefor, although ordered therefor, or
normally used in connection with similar broadcasts. The television devices,
methods and improvements referred to herein include, but are not limited to,
so-called "booster" or "translator" stations and relay systems, as well as
antenna systems which receive and retransmit or redistribute (with or without
amplification), television signals by wire or cable connection or otherwise to
television receiving sets. The Programs may be broadcast throughout the Network
Broadcast Territory over such network television facilities as CBS may select or
authorize. The broadcast hereunder may be made on a live basis and/or by means
of "recording" as CBS may elect. As used herein, the term "recording" shall mean
and include any recording made or authorized to be made by CBS by tape, wire,
film, disk or other similar or dissimilar method of recording television
programs.
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4. Subject to any limitations of which CBS is notified by Licensor, CBS's
rights shall include the right to broadcast, use and exploit excerpts of an
Event not exceeding three (3) minutes in length per excerpt in perpetuity on a
non-exclusive basis throughout the Network Broadcast Territory in any manner and
in any medium now known or hereafter developed.
5. OMITTED
6. (a) Licensor warrants and represents that it has the right and power to
enter into and fully perform this Agreement, that it has the right to grant the
rights granted CBS herein and that the broadcast and exploitation of the
coverage of the Events will not infringe upon or violate any rights of any kind
or nature whatsoever of any person, firm or corporation. Licensor further
warrants that Licensor has not granted and will not grant to any party any
rights of any kind which would or might derogate or interfere with any rights
granted herein.
(b) Licensor shall inform CBS in writing of the names of any participants
in the Events whom Licensor (or any parent or subsidiary) (i) represents as an
agent, or (ii) represents as a business or personal manager. CBS may make such
announcement concerning such representation as CBS in its sole discretion may
deem appropriate.
(c) Licensor warrants that all representations to CBS by Licensor and all
representations made by Licensor to third parties about any and all elements of
the Events, including, without limitation, the title of the Events, format,
record of the participants, purses, etc., are and shall be accurate and true in
every respect. Licensor further warrants that it has made and will make full
disclosure to CBS with respect to all such elements of the Events as soon as
possible after Licensor has knowledge.
(d) Licensor warrants that all publicity which it issues or disseminates or
otherwise makes available concerning all elements of the Events will be accurate
and true in all material respects.
(e) Licensor warrants that Licensor will not mislead or misrepresent with
respect to any material elements of the Events and that Licensor will include in
all of its future agreements with third parties that such third parties will not
misrepresent or mislead with respect to the Events. Licensor shall endeavor to
include in its prior agreements with third parties that such parties shall not
mislead or misrepresent with respect to the Events.
(f) Licensor warrants that it shall maintain at its office of the address
set forth above, complete books and records (including without limitation copies
of all relevant contracts) relating to the subject matter of this Agreement.
(g) Licensor warrants that Licensor will not use or authorize others to use
for any purpose whatsoever any trademarks or service marks of CBS Broadcasting
Inc., or its subsidiaries or divisions, including but not limited to the CBS
"Eye" device and the letters "CBS," "CBS SPORTS," "CBS SPORTS SPECTACULAR," "THE
CBS SPORTS SHOW," "EYE ON SPORTS," "CBS SPORTS SATURDAY," "CBS SPORTS SUNDAY"
and/or "CBS SPORTS TONIGHT" without the prior written consent of CBS.
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7. (a) Licensor will at all times indemnify and hold harmless CBS
Corporation, CBS and their related entities, and any person, firm or corporation
deriving rights from any of the foregoing, from all claims, damages,
liabilities, costs and expenses (including reasonable counsel fees) arising out
of or relating to (i) the broadcast and exploitation of the coverage of the
Events and any commercials or other materials furnished for broadcast by
Licensor, (ii) a breach by Licensor of any warranty or agreement made by
Licensor herein, (iii) any act or omission by Licensor with regard to any
element furnished by Licensor to CBS or (iv) the exploitation of the coverage of
the Events by Licensor pursuant to paragraph 20 hereof, CBS will promptly notify
Licensor of any claim to which the above indemnity applies and Licensor shall
defend the same at its own expense.
(b) CBS will at all times indemnify and hold harmless Licensor from and
against any and all suits, claims, damages, liabilities, costs and expenses
(including reasonable counsel fees) arising out of (i) a breach by CBS of any
warranty or agreement made by CBS herein or (ii) the use of any materials or
services furnished by CBS for and in connection with the broadcast of the
coverage of the Events. Licensor will promptly notify CBS of any claim to which
the above indemnity applies and CBS shall defend the same at its expense.
8. CBS's Program Practices Department policies and standards shall apply to
the Events and to the Sites at which the Events take place. Licensor shall
comply with and shall cause those persons controlling any Site to comply with
all such policies and standards. Unless CBS consents thereto in advance in
writing no banner, placard, billboard, decal, insignia or other means of
advertising containing any commercial message, trade name, trademark or
identifying device for any product, service or institution shall appear or be
included at a Site (in the normal range of television cameras) or on any person
connected with an Event (e.g., managers, handlers, announcers, referees, etc.).
Two (2) weeks prior to date of an Event, Licensor will provide CBS with a
written Signage Statement setting forth the location of and the advertiser for
all Signage to be included at the Site of an Event and the number of commercial
units the advertiser identified on a Sign will have in the relevant Program, if
any. Such statement will include those products, services and/or institutions
which shall be advertised on any permanent banner, plaque or billboard or other
similar means of advertising. It is understood, however, that Licensor does not
control the placement of "permanent" advertising at a Site (i.e., fixed or
immovable advertising in place on a year-round basis). Licensor will advise CBS
reasonably in advance of the broadcast or recording of each Event of those
products, services and/or institutions which shall be advertised on any
permanent banner, plaque or billboard or other similar means of advertising. CBS
will review the Signage Statement for compliance with CBS's policies and
standards and advise Licensor without delay if the Signage Statement is in
compliance with CBS's standards and policies. Licensor's compliance with the
CBS-approved Signage Statement will not be a breach of this Agreement. Any
breach of the provisions of this paragraph shall be a material breach of this
Agreement.
9. CBS, and each station scheduled to broadcast the Programs shall have the
right and may grant to others the right to reproduce, print, publish or
disseminate in any medium the name and likeness and voice of each person
appearing in or connected with an Event and biographical material concerning
such persons as news or information, for purposes of trade or for advertising
purposes (including without limitation institutional advertising) and including
the advertising or promotion of the broadcast hereunder; provided, however, that
there shall be no direct endorsement by any such persons of any product or
service without such person's prior written consent.
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10. At CBS's request Licensor shall furnish CBS with a reasonable number of
choice complimentary tickets/passes to each Event.
11. Licensor, in furnishing all the below-the-line elements necessary for
the production of coverage of an Event, will provide, among other things, the
following: free and unrestricted access for CBS personnel to the Site where the
Event is taking place; priority locations and suitable space for CBS announcers
and/or production personnel if CBS is furnishing the same; adequate parking
space at the Site for CBS personnel, mobile units and equipment; production
facilities; lighting and camera equipment (both fixed position and hand held);
satisfactory camera locations and electrical power; security as CBS shall
determine; and such other elements as CBS may from time to time reasonably
request, all of which shall be in accordance with CBS requirements to ensure a
first class quality color broadcast of the Event meeting CBS's technical and
programming standards. CBS shall have a right of approval over all the
below-the-line elements. In this regard, Licensor shall furnish CBS Sports
Operations with the name of the representative of the supplier of all technical
facilities who shall be available to handle any problems with respect thereto.
12. Licensor shall conform to the requirements of Section 507 of the
federal Communications Act of 1934 concerning broadcast matter and disclosures
required thereunder, insofar as the Section applies to those furnishing program
material for television broadcasting. Licensor warrants and represents that
without the prior approval of the CBS Program Practices Department no portion of
an Event or related activities includes or shall include any matter for which
any money, service or other valuable consideration is directly or indirectly
paid, or promised to, or charged or accepted by Licensor, other than sums paid
to Licensor or its affiliated entities for arranging and managing the
presentation of the Event. Licensor shall exercise reasonable diligence to
inform its employees and other persons with whom Licensor deals directly in
connection with an Event of the requirements of the said Section 507; provided,
however, that no act of any such employee or of any independent contractor
connected with the Event or related activities shall constitute a breach of the
provisions of this paragraph unless Licensor has actual notice thereof. As used
in this paragraph, 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 an Event "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 terms
are used in the said Section 507. No inadvertent failure by Licensor to comply
with this paragraph shall be deemed a breach of this Agreement.
13. If Licensor owns or controls the network television broadcast rights to
the next subsequent comparable Events scheduled to take place after the
2013-2014 Events hereunder, Licensor shall immediately so notify CBS and at
CBS's election, Licensor shall negotiate exclusively with CBS in good faith for
a period of thirty (30) days beginning on October 1, 2013
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(the "Negotiating Period") with respect to the acquisition by CBS of such
broadcast rights. At no time prior to or during the Negotiating Period shall
Licensor discuss or enter into an agreement with any third party for the
acquisition of broadcast rights to any such Events for the Network Broadcast
Territory. If at the end of the Negotiating Period CBS and Licensor have not
reached agreement, Licensor shall notify CBS in writing of Licensor's last offer
(i.e., the terms and conditions on which it would be willing to license such
rights to any such Events; provided, however, that if Licensor fails to notify
CBS in writing at the conclusion of the Negotiating Period, said Negotiating
Period shall be deemed to continue uninterrupted w1til such time as Licensor
submits Licensor's last offer to CBS in writing. Such notice shall contain an
offer (the "Offer") to contract with CBS on such terms and CBS shall have a
period of fourteen (14) days in which to accept the Offer. If CBS does not
accept the Offer, Licensor may enter into agreement with any third party with
respect to subsequent broadcasts of any such Events, but not in any instance on
terms and conditions equal to or less favorable to Licensor than those contained
in the Offer without in each instance notifying CBS of such terms. Each such
notice shall contain an offer (herein called a "Reoffer") to contract with CBS
on such terms. CBS shall have a period of seven (7) days in which to accept each
such Reoffer. CBS shall be deemed to have accepted any Offer or Reoffer by
acceptance of all of the terms thereof readily reducible to a determinable sum
of money.
14. This Agreement has been entered into in the State of New York, and the
validity, interpretation and legal effect of this Agreement shall be governed by
the laws of the State of New York applicable to contracts entered into and
performed entirely within the State of New York, with respect to the
determination of any claim, dispute or disagreement which may arise out of the
interpretation, performance or breach of this Agreement.
15. Except as otherwise specifically provided herein, all notices hereunder
shall be in writing and shall be given by personal delivery, registered or
certified mail, at the respective addresses hereinabove set forth, or such other
address or addresses as may be designated by either party. Such notices shall be
deemed given when mailed or delivered to a post office or courier, except that
notice of change of address shall be effective only from the date of its
receipt.
16. This Agreement contains the entire understanding of the parties hereto
relating to the subject matter hereof and cannot be changed or terminated
orally.
17. A waiver by either party of any term or condition of this Agreement in
any instance shall not be deemed or construed as a waiver of such term or
condition for the future, or of any subsequent breach thereof. All remedies,
rights, undertakings, obligations and agreements contained in this Agreement
shall be cumulative and none of them shall be in limitation of any other remedy,
right, undertaking, obligation or agreement of either party.
18. The invalidity or unenforceability of any provision of this Agreement
shall in no way affect the validity or enforceability of any other provision of
this Agreement.
19. (a) Prior to the Date of an Event, Licensor shall, at its own expense,
secure a policy of television liability insurance applicable to the broadcasts
hereunder and acceptable to CBS having limits of at least $1,000,000/$3,000,000.
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Such insurance shall have standard coverage, including, but not limited to,
coverage with respect to defamation, infringement of common law or statutory
copyright, infringement of rights in material to be broadcast or in the manner
of presentation thereof, invasion of privacy rights and unauthorized use of
material. Such policy shall include a provision requiring the insurance company
to give CBS prompt notice of any revision, modification or cancellation thereof.
Promptly after securing such policy, Licensor shall furnish CBS with a copy
thereof. CBS shall be included as a named insured in the policy of insurance
obtained by Licensor in compliance with this paragraph 19. Such policy shall
contain an endorsement deleting the condition thereof entitled "Other Insurance"
as to any insurance in force for or in the name of CBS.
(b) Prior to the Date of an Event, Licensor shall, at its sole cost and
expense, obtain and maintain (or shall cause to be obtained and maintained) at
all times the following insurance policies acceptable to CBS: Workers'
Compensation; Employer's Liability having a limit of at least $100,000 per
occurrence; Comprehensive General Liability having a combined single limit
(bodily injury and property damage) of at least $1,000,000 per occurrence and
$3,000,000 in the aggregate; if production is on location or otherwise entails
automobile usage, Comprehensive Automobile Liability having limits of at least
$1,000,000/$3,000,000 plus $500,000 property damage: and, if rental automobiles
are used, Non-Ownership Automobile Liability, having limits of at least
$1,000,000/$3,000,000 plus $500,000 property damage. Each of the aforementioned
policies as required shall include a provision requiring the insurance company
to give CBS prompt notice of at least thirty (30) days of any revision,
modification or cancellation thereof. Promptly after such policies have been
secured, at CBS's request, Licensor shall furnish CBS with copies of the
certificates of insurance or, at CBS's request, copies of the insurance
policies. CBS shall be included as an additional insured in all policies of
insurance (except Workers' Compensation) obtained by or at the instruction of
Licensor in compliance with this subparagraph.
20. Nothing contained herein shall preclude Licensor from exploiting the
coverage of an Event in whole or in part in any manner or media outside of the
Network Broadcast Territory during the License Period; provided, however, that
if such coverage shall include CBS graphic materials and/or the likeness, voice
or name of any sportscaster or expert analyst or the services of other persons
furnished by CBS hereunder in connection with such coverage, Licensor shall be
solely responsible for the payment of all expenses, residuals and/or fees which
may become payable for the use of such materials and/or to any such person by
virtue of such exploitation of the coverage and Licensor shall make any
applicable union pension and welfare contributions based thereon, if any; and
provided, further, that Licensor give CBS prior notice of such exploitation.
21. If CBS's broadcast of the coverage of an Event is prevented or omitted,
in whole or in part, because of: act of God; inevitable accident; fire; lockout,
strike or other labor dispute; riot or civil commotion; act of public enemy;
enactment, rule, order or act of any government or governmental instrumentality
(whether federal, state, local or foreign); failure of technical facilities;
failure or delay of transportation facilities; illness or incapacity of any
Event participant named in this Agreement; or the recapture of the then
scheduled original network broadcast time period of an Event for the purpose of
broadcasting a matter of public importance; or other cause of a similar or
different nature beyond CBS's control, CBS shall have the option to broadcast
12
the coverage of such Event during another time period(s) in a similar daypart in
accordance with CBS 's broadcast requirements, as solely determined by CBS. If
for any reason beyond Licensor's control (including, without being limited to,
adverse weather conditions) an Event is not held on the scheduled Date, Licensor
shall immediately notify CBS of the rescheduled Date(s) of the Event, if any,
and CBS shall have the option to require Licensor to produce coverage of the
Event for CBS on such Date(s) pursuant to the terms and conditions hereof and
CBS shall broadcast the coverage of the Event during another time period(s) in a
similar daypart in accordance with CBS's broadcast requirements, as solely
determined by CBS. If the coverage of an Event cannot be broadcast during the
originally scheduled broadcast time period(s) for any reason set forth in this
paragraph or in another time period in a similar daypart, CBS and Licensor shall
have the right to mutually agree to elect to broadcast alternative sports
programming during the original time period(s) and broadcast the commercial
units furnished by Licensor for inclusion in the broadcast coverage of the Event
in such alternative programming. If for any reason the commercials furnished by
Licensor hereunder cannot be broadcast in sports programming on the CBS
Television Network, Licensor and CBS will negotiate in good faith other options
with respect to the commercial units, including, without limitation, a pro rata
return of the sum paid by Licensor pursuant to subparagraph IV.(a).
13
EXHIBIT I
Attached hereto and made a part hereof the Agreement dated as of October 31,
2011, between CBS SPORTS, A Division of CBS Broadcasting Inc., and ARMADA SPORTS
AND ENTERTAINMENT, INC.
SCHEDULE B
CBS TELEVISION NETWORK NETWORK TELEVISION
AGREEMENT TERMS AND CONDITIONS
GENERAL
I. As u sed herein
(i) "Program" means everything contained in each broadcast or contemplated
broadcast hereunder with the exception of commercial, billboard and promotional
material and supervening program material" (as hereinafter defined). As used
herein, "Program" will be deemed to include "Program Series";
(ii) "supervening program material" means any matter of the nature set
forth in subdivisions (i) through (v) of subparagraph (a) of paragraph 4 hereof;
(iii) "broadcast" means broadcast, transmission and exhibition by means of
such television devices, methods and improvements now or hereafter developed as
CBS may elect;
(iv) "Commercial" means each commercial message furnished for broadcast on
behalf of Advertiser hereunder. Unless otherwise specified herein, each
Commercial shall total either thirty (30) seconds. The term "unit'" has the same
meaning as Commercial. The applicable length of any Commercial shall be as set
forth in the Agreement.
(v) "CNYT" means New York time current at time of broadcast; (vi) "CLAT'"
means Los Angeles time current at time of broadcast; (vii ) "delayed broadcast"
means a broadcast hereunder occurring other than at the scheduled time of
original broadcast hereunder, but not more than sixty (60) days thereafter;
(viii) "recording" and "recordings" mean any recording or recordings made
(whether before, during, or after a broadcast transmission) by tape, wire, film,
disc, or any other similar or dissimilar method of recording aural and/or visual
portions of television programs, whether now known or hereafter developed;
(ix) "Billboard" mea ns a brief oral and /or visual announcement
identifying Advertiser's sponsorship of the Program or Program Series and/or (in
accordance with CBS's policies) describing one ( I ) or more of the products or
services listed in the Agreement hereof or as provided in paragraph 15 of this
Schedule B. CBS will broadcast Billboards in an equitable manner consistent with
its policies and subject to commitments to other advertisers. The omission of
any Billboard for any reason shall not constitute a breach hereof and CBS shall
have no liability to Agency with respect thereto;
(x) "Special Program" means any special information, public affairs or
entertainment Program of whatever length; (xi) "news bulletin" means an oral
and/or visual announcement of the occurrence of a news event made promptly after
the sa me has become known to C BS;
(xii) "news report" means an oral and/or visual announcement of the
occurrence of a news event which in CBS's sole judgment does not require
treatment as a news bulletin but the announcement of which to the public should
not be delayed until the next regularly scheduled CBS Television Network news
program;
(xiii) "the term" of this Agreement means the period commencing upon the
date of original broadcast of the first Commercial hereunder and ending upon the
date of the original broadcast of the last Commercial hereunder and any delayed
broadcasts thereof;
(xiv) "Broadcast Time Period" means the day and/or approximate time period
during which each Program i s scheduled for broadcast. Each Broadcast Time
Period refers to CNYT except broadcasts in the Pacific Time Zone, which are
CLAT;
14
(xv) OMITTED;
(xvi) "Agency Package" means everything necessary for the production and
performance of the Billboards and Commercials so as to be ready for broadcast
including, without being limited to, all commercial material and all personnel
to be used in connection therewith.
(xvii) "Vignette Program" means any regularly scheduled program of one
minute or less in duration, including, but not limited to, programs such as
NEWSBREAK or local station N EWSB.REAK.
2. (a) Agency and Advertiser will indemnify and hold harmless CBS, its
parents, subsidiaries, affiliates, any stations broadcasting the Programs, and
any other advertiser whose billboard or commercial material is broadcast during
the Broadcast Time Period, and the directors, officers and employees of any of
them, from and against any and all claims, damages, liabilities, costs and
expenses, including reasonable counsel fees, arising out of the use of the
Agency Package pursuant to this Agreement. CBS will promptly notify Agency of
any claim or litigation to which the indemnity set forth herein applies. Agency
or Advertiser will assume the defense of any claim or litigation, and Agency's
and Advertiser's obligations with respect thereto shall be limited to the
payment of any judgment, or settlement approved by either of them, together with
all taxable costs and all bills of lawyers retained by them in connection
therewith. The exercise of, or the failure to exercise, any rights reserved to
CBS under paragraphs 17 and 19 hereof shall have no effect upon any of Agency's
or Advertiser's obligations under this paragraph.
(b) CBS will indemnify and hold harmless Advertiser and Agency, and the
directors, officers and employees of each of them, from and against any and all
claims, damages, liabilities, costs and expenses, including reasonable counsel
fees, arising out of the broadcast of any material furnished by CBS. Agency or
Advertiser will promptly notify CBS of any claim or litigation to which the
indemnity set forth herein applies. CBS will assume the defense of any claim or
litigation, and CBS's obligations with respect thereto shall be limited to the
payment of any judgment, or settlement approved by CBS, together with all
taxable costs and all bills of lawyers retained by CBS in connection therewith.
3. If by reason of: act of God; inevitable accident; fire; lockout, strike,
or other labor dispute; riot or civil commotion; act of public enemy; enactment,
rule, order, or act of government or governmental instrumentality (whether
federal, state, or local); illness or incapacity of any important performer,
failure in whole or in part of the broadcast or other facilities for which (as
between CBS and Agency) CBS is responsible hereunder; or other cause of a
similar or different nature beyond CBS's control, CBS fails to perform fully
hereunder, the same shall not constitute a failure of performance by CBS, and
CBS shall not be liable to Agency as a result thereof.
4. (a) CBS reserves the right (in its sole discretion and without
liability) to advance or delay one or more broadcasts of the Program(s) and or
Commercial(s) or to interrupt or to omit in whole or in part any one or more
broadcasts of the Programs and Commercials over any station(s) scheduled to make
such broadcast for the purpose of or in connection with broadcasting whether on
a sponsored or unsponsored basis:
(i) events of public importance;
(ii) political programs;
(iii) Special Programs;
(iv) news bulletins or
(v) news reports
CBS will endeavor to give Agency as much advance notice as possible of any
omission pursuant to this subparagraph (a) (except that no notice need be given
in the case of news bulletins or news reports). Posting, by ordinary mail, of a
CBS Supplementary Notice shall constitute notice hereunder.
(b) CBS shall determine that it has an obligation under the federal
Communications Act, as amended, to provide candidates for public office with
time for paid political announcements, CBS shall have the right to omit the
broadcast of any Commercial or Program hereunder over any station(s) scheduled
to make such broadcast.
(c) If pursuant to paragraph 3 hereof or subparagraphs (a) or (b) of this
paragraph any Scheduled Commercial is not broadcast, and CBS and Agency after
good faith negotiations do not agree with respect to the rescheduling of any
such Commercial, then each such Commercial shall be eliminated from this
Agreement and CBS will allow Agency an equitable adjustment in the price.
(d) Notwithstanding the provisions of subparagraphs 4(a), 4(b) and 4(c)
hereof, if CBS, after notifying Agency or Advertiser of an omission pursuant to
paragraphs 3, or subparagraph 4(a) or 4(b) hereof, elects to reinstate in its
original Broadcast Time Period any Program originally so omitted, CBS shall
broadcast each Commercial as originally set forth in the Agreement, unless such
Commercial has been broadcast (pursuant to an agreement reached between CBS and
Agency) prior to the date such Program was reinstated.
15
(e) If for any reason of the nature set forth in paragraph 3 hereof or
subparagraphs (a) or (b) of this paragraph any substantial or material portion
of any Commercial is not broadcast, CBS shall discuss with Agency an equitable
adjustment in the price.
5. CBS and Agency are independent contractors, and any and all contracts
entered into by either of them in the performance of this Agreement, whether
contracts of employment or otherwise, shall be entered into by each of them as
principals (it being understood that Agency is acting as agent for a disclosed
principal), and neither CBS nor Agency shall be nor be deemed to be the agent of
the other in negotiating or entering into any of such contracts. Each of Agency
and Advertiser will individually and jointly be liable for all payments due
under the Agreement.
6. As among CBS, Agency and Advertiser, CBS will exclusively own all
rights, titles and interests in and to the supervening program material and any
other material furnished by CBS.
7. CBS shall not be liable for loss of, damage to, or other impairment of
the value of any property furnished by Agency hereunder unless caused by the
demonstrable negligence or intentional act or omission of CBS or its employees.
8. (a) Payment hereunder includes payment of all station time charges.
However, such payment does not include charges for closed captioning or for any
type of facilities for the rehearsal, production or insertion of Commercials
and/or Billboards.
(b) If the number of United States television households reachable by all
stations broadcasting a Commercial is less than eighty-five percent (85%) of the
number of United States television households reachable by all stations
scheduled to broadcast the Commercial pursuant to subparagraph 16(a) hereof for
any reason of the nature set forth in paragraph 3 or subparagraph 4(a) or 4(b)
hereof; or otherwise, CBS shall, in a fair and equitable manner, and in
accordance with CBS's policies, allow Agency an appropriate reduction in the
price. With respect to each Commercial, CBS represents that no reduction is
applicable unless CBS has notified Agency to the contrary within sixty (60) days
after the broadcast thereof.
(c) The payment terms offered in this Agreement are subject to both Agency
and Advertiser meeting and continuing to meet CBS's standards for the extension
of credit.
(d) All schedule changes including, without limitation, changes pursuant to
subparagraphs 4(a) and 23(a) hereof and all changes in the price will be
reflected in a CBS Supplementary Notice, the posting of which shall constitute
notice hereunder.
(e) Time of payment hereunder is of the essence. CBS's obligations
hereunder are expressly conditioned upon the full payment of all sums due CBS
under this Agreement and any other agreements(s) between CBS and Advertiser
and/or Agency.
9. All Commercials and Billboards will conform to the CBS Television
Network Advertising Guidelines as interpreted by the CBS Program Practices
Department. Agency will cooperate with CBS in the broadcasting of Commercial and
Billboard material of the highest possible standards of excellence and for such
purpose Agency will observe the Guidelines and, without limitation, the
following standards in the preparation, writing and broadcast of all oral and/or
visual elements of the Agency Package:
(i) no false, misleading or unwarranted claims for any product or service;
otherwise;
(ii) no infringement of any right of any person, firm, or corporation by
means of plagiarism, unfair competition, or
(iii) no material constituting or relating to a lottery , or to a contest
of any kind in which the public is unfairly treated; treatment;
(iv) no material which is defamatory, obscene, profane, vulgar, repulsive
or offensive, either in theme or in
(v) no statement or representation that may be deceptive or misleading to
the public;
(vi) no deceptive or misleading visual presentation of any product or
service or of its performance characteristics; (vii) no testimonial which cannot
be authenticated and
(viii) no material or announcement which may, in the opinion of CBS, be
injurious or prejudicial to the interests of the public, CBS and /or its
affiliated stations, or which may be contrary to honest advertising or reputable
business in general.
10. A waiver by either party of any term or condition of this Agreement in
any instance shall not be deemed or construed as a waiver of such term or
condition for the future, or of any subsequent breach thereof. All remedies,
rights, undertakings, obligations and agreements contained in this Agreement
shall be cumulative and none of them shall be in limitation of any other remedy,
right, undertaking, obligation or agreement of either party.
Except as otherwise specifically provided herein, all notices hereunder
shall be in writing and shall be given by personal delivery, mail, at the
respective addresses hereinabove set forth, or such other address or addresses
as may be designated by either party. Such notices shall be deemed given when
16
mailed, except that notice of change of address shall be effective only from the
date of its receipt. Posting by ordinary mail, a CBS Supplementary Notice shall
in all instances constitute Notice to Agency.
12. This Agreement has been entered into in the State of New York, and the
validity of interpretation and legal effect of this Agreement shall be governed
by the laws of the State of New York applicable to contracts entered into and
performed entirely within the State of New York, with respect to the
determination of any claim, dispute or disagreement which may arise out of the
interpretation, performance or breach of this Agreement.
13. This Agreement contains the entire understanding of the parties hereto
relating to the subject matter hereof and cannot be changed or terminated
orally, except that the parties hereto may, if they so agree, add or delete
cities from those ordered hereunder by orally amending this Agreement.
14. The invalidity or unenforceability of any provision of this Agreement
in no way affect the validity or enforceability of any other provision of this
Agreement.
FACILITIES
15. (a) Subject to CBS's then current policy with respect to the number,
content, placement and length of commercial announcements, each Broadcast Time
Period may be used for advertising the product or service, if any, specified in
the Agreement or any other product or service of Advertiser subject to the
following provisions of this subparagraph. Agency shall as soon as possible
furnish the names of the product(s) and/or service(s) Advertiser desires to
advertise in each Broadcast Time Period. CBS shall advise Agency if any proposed
product or service is deemed unacceptable pursuant to paragraph 9 or
subparagraph 17(c) hereof and if, in light of CBS's then existing sponsorship
commitments, any such product or service is unavailable. Agency's failure to
designate an available product or service at least eight (8) hours prior to the
commencement of the appropriate Broadcast Time Period shall constitute failure
to furnish a Commercial pursuant to subparagraph 17(c) hereof, and in such event
CBS shall have all of the rights specified in the last two (2) sentences of said
subparagraph 17(c).
(b) CBS may include in the Broadcast Time Period such other material,
public service messages or announcements and/or promotional material all as CBS
shall elect.
16. (a) Subject to station acceptances, CBS shall cause the Programs and
the Commercials to be broadcast pursuant to all of the provisions of this
Agreement over a station in Bermuda and each city in the United States,
including cities in the territories and possessions of the United States
(excluding Puerto Rico), in which there is a station owned by or affiliated with
CBS, except as may be otherwise agreed pursuant to paragraph 13 hereof. CBS's
obligation to broadcast the Programs in the territories and possessions of the
United States and in Bermuda shall be subject to CBS's having the necessary
broadcasting rights. In addition, CBS, without additional charge to Agency, may
authorize the broadcast of the Programs, Billboards and Commercials over any
so-called translator station or relay system or over any antenna system which
receives and retransmits or redistributes television signals by wire or cable
connection or otherwise to television receiving sets. CBS's obligations pursuant
to this subparagraph with respect to Movie Programs" (as hereinafter defined),
if any, shall not include Bermuda or any United States territory or possession.
(b) During any period that any station affiliated with the CBS Television
Network (including any station owned by CBS Broadcasting Inc., or a subsidiary
of CBS Corporation.) scheduled to broadcast the Programs and Commercials in any
city does not accept such Programs and Commercials for broadcast, or is
unavailable for the broadcast thereof during the Broadcast Time Period, CBS
shall endeavor to cause the Programs and Commercials to be accepted for
broadcast by a station not affiliated with the CBS Television Network in such
city. If during any such period CBS is:
(i) unable to make any arrangements satisfactory to CBS to transmit the
Programs and Commercials to any such affiliated or non-affiliated station; or
(ii) unable to arrange a delayed broadcast schedule for any such affiliated
or non-affiliated station; the broadcast of the Programs and Commercials by any
such affiliated or non-affiliated station shall be suspended and the same shall
not constitute a breach of this Agreement.
17. (a) Except only as otherwise provided in this Agreement, or in any
other agreement between CBS and Agency concerning the Program(s) or
Commercial(s), Agency shall furnish the Agency Package to CBS.
(b) At least three (3) weeks prior to the scheduled broadcast date of each
Agency Package, Agency shall deliver to CBS's Program Practices Department a
copy of the script and story board therefor. All filmed or taped Commercial
material forming part of the Agency Package shall be furnished at least two (2)
weeks in advance of the scheduled broadcast date thereof to CBS's Program
Practices Department on 3/4 inch video cassette and to each origination point
specified by CBS pursuant to paragraph 20 hereof. Each Agency Package shall be
furnished pursuant and subject to the then current CBS Television Network
Commercial Integration Manual.
(c) CBS may refuse to broadcast or may withdraw its approval of any Agency
Package or any element thereof which, in the opinion of CBS's Program Practices
Department, does not maintain an artistic and technical quality creditable to
CBS or fails to conform to CBS's general policies concerning commercials and
billboards or to the regulations set forth in paragraph 9 of this Agreement, or
contains any matter to which the second sentence of paragraph 19 hereof
pertains. In such event or if Agency fails to furnish the Agency Package as
provided in this paragraph 17, CBS may, without prejudice to any other rights
which it may have, require Agency to furnish a substitute Agency Package
17
acceptable to CBS. If, however, Agency fails to furnish any Commercial or if
Agency fails to edit any Commercial as requested by CBS, or if time does not
permit such editing, CBS may substitute non-commercial material therefor, or if
CBS so elects, and time permits, CBS may substitute commercial material of
another advertiser and reduce the price hereunder by such amount as CBS deems
equitable under the circumstances. lf, pursuant to the immediately preceding
sentence, CBS elects to broadcast non-commercial material, CBS may broadcast
such non-commercial material in accordance with all of the other provisions of
this Agreement (including, but not limited to, paragraph 8 hereof), and CBS may
make such announcements concerning sponsorship as in its judgment may be
required by any statute, rule, or regulation of government or governmental
instrumentality (whether federal, state or local).
(d) After the broadcast of each Agency Package containing musical
compositions, Agency shall submit to CBS the titles of all such musical
compositions broadcast, the names of the composers, authors and publishers
thereof, the name of the applicable performing rights licensing organization and
the date(s) and time(s) the Agency Package containing the musical composition
was broadcast. Upon receipt of all of the above information, CBS will confirm
that the Agency Package containing the musical composition was so broadcast and
notify the applicable performing rights licensing organization of such
broadcast.
(e) If Agency so elects, Commercials may be furnished on a closed captioned
basis, but will be acceptable only if such Commercials are closed captioned in
Line 21.
(f) At Agency's election, Commercials may be furnished with stereophonic
audio. If Agency so elects, such Commercials shall be in conformance with any
technical standards and practices adopted by CBS for programs with stereophonic
audio.
18. (a) Each broadcast of the Agency Package shall be made by means of
recordings (video tape or film, as designated by CBS), except that if Agency and
CBS agree, all or any portion thereof may be broadcast on a live basis.
(b) CBS may (at its expense) make such number of recordings of the Programs
and the Agency Package as it deems necessary for delayed broadcast purposes. CBS
shall select the method(s) of making and shall make (or cause to be made) all
such recordings at CBS's expense.
(c) All rights in recordings of an Agency Package shall be vested in
Agency, except that rights in the physical property of a recording made by CBS
of an Agency Package shall be vested in CBS. Whether or not a recording is
broadcast hereunder, CBS may make and retain a recording of the Program and/or
Agency Package for file and reference purposes.
19. Agency and Advertiser will conform to the requirements of Section 507
of the federal Communications Act, as amended, concerning broadcast matter and
disclosures required thereunder, insofar as that Section applies to persons
furnishing commercial material for television broadcasting. Agency and
Advertiser warrant and represent that without the prior approval of CBS's
Program Practices Department no Agency Package includes or will include any
matter for which any money, service, or other valuable consideration is directly
or indirectly paid, or promised to, or charged or accepted by Agency or
Advertiser. Agency and Advertiser shall exercise reasonable diligence to inform
their employees, and other persons with whom they deal directly in connection
with any Agency Package, of the requirements of the said Section 507; provided,
however, that no act of any such employee or of any independent contractor
connected with any Agency Package shall constitute a breach of the provisions of
this paragraph unless Agency or Advertiser bas actual notice thereof. As used in
this paragraph 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 Agency Package 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 terms
are used in the said Section 507. No inadvertent failure by Agency or Advertiser
to comply with lbis paragraph shall be deemed a breach of this Agreement.
PROGRAMS
20. The Program shall be broadcast under CBS's sole dire!..1ion and control
and shall originate from such place(s) as CBS shall determine and Agency will
deliver the Program and Commercials to a location or locations as specified by
CBS.
21. OMITTED.
22. OMITTED.
23. (a) CBS shall have the right on notice to Agency to discontinue or at
any time or from time to time to suspend for such period or periods as CBS
elects the broadcasting of any or all of the Programs specified in the Agreement
hereof. In addition, at any time or from time to time CBS shall have the right
on notice to Agency to change the Broadcast Time Period of each such Program
Series to another broadcast time period. In addition, CBS may on notice to
Agency expand or shorten the length of any Program Series. If CBS so expands the
length of any Program Series, the Commercials shall not be broadcast other than
within the original Broadcast Time Period except with Agency's prior approval,
which shall not be unreasonably withheld. Posting, by ordinary mail, of a CBS
Supplementary Notice shall constitute notice hereunder.
(b) CBS reserves the right to change the Broadcast Time Period and date of
live sports events, other live actuality events such as, but not limited to,
parades, concerts, openings, events of public importance and of documentary or
public affairs Programs, as well as the right, at any time or from time to time,
to change the length of the Broadcast Time Period of any regularly scheduled
hard news" Program. CBS will use reasonable efforts to advise Agency of the
18
scheduled and/or rescheduled starting time of each such Program. However, with
respect to any live sports .Program, if the time (but not the date) in the
Agreement is shown at TPT (i.e. Time Period Tentative"), CBS will not furnish
Agency a CBS Supplementary Notice li sting the actual time of broadcast.
24. OMITTED.
25. OMJTTED.
26. The additional provisions, paragraphs 27 through 31 set forth below,
are applicable only to the extent set forth herein. (i) Paragmphs 27 and 28 are
applicable to sports Programs generally; and
(ii) Paragraph 29 is applicable to regional advertisers only.
27. lt is understood that on occasion blackouts may be required by entities
providing CBS the rights to sporting events hereunder and similarly that
blackouts may be required by virtue of Public Law 87-331, 75 Stat. 732 as
amended by Public Law 89-800, 80 Stat. 1508.
28. Notwithstanding anything contained in subparagraph 23(b) hereof, if for
any reason the broadcast of a sporting event i s postponed and CBS elects to
broadcast, during a portion of the Broadcast Time Period originally set aside
therefor, a program relating to such sporting event, then, at CBS' option, the
Commercial or one or more of the Commercials originally scheduled to be
broadcast during such sporting event may be broadcast during such program which
shall thereupon be a Program hereunder.
29. Anything in subparagraph 16(a) hereof to the contrary notwithstanding,
CBS, subject to station acceptances, shall cause the Commercials to be broadcast
(on a regional basis) only in those United States cities designated by Agency in
writing prior to the commencement of the term hereof; provided, however, that
if, for any reason whatsoever, any Commercial is broadcast in any other city,
such broadcast shall not constitute a breach of this Agreement and CBS shall
incur no liability thereby.
19