This Agreement for the Sale of Video Production/Underwriting/Broadcasting (“Agreement”) is entered into as of
by and between DMTV, LLC. (“DMTV”) a
Either Party may terminate this Agreement at the end of the initial term by 3 days prior written notice to the other.
Broadcast Air Time.DMTV agrees that during the term of this Agreement, it will sell to CLIENT, and will permit CLIENT to broadcast product information announcements, all of the time available for announcements on DMTV (and/or TUBOX). All announcements (either video/audio or verbally read) will be furnished by CLIENTS and shall comply with applicable federal, state, and local regulations and pertinent governmental policies, including, but not limited to, lottery restrictions, prohibitions on obscenity and indecency, deceptive sales, false representations or deception of any kind, and political broadcasting rules. DMTV shall notify CLIENT in advance of the broadcast of any material which promotes or opposes any candidate for public office or any issue to appear on a ballot or takes a position on a controversial issue of public importance. No material constituting a Personal Attack within the meaning of the FCC’s rules and regulations or which is defamatory, violates any right of privacy, infringes on any intellectual property right of another party, or is not in the English or Spanish language will be accepted for broadcast. DMTV shall furnish CLIENT with all material required to be made available for public inspection regarding requests for time by political candidates or the broadcast of controversial issue airtime, including information regarding receipt of any request by or on behalf of a candidate for time and the disposition thereof (whether or not time was furnished and, if so, the terms and conditions thereof), and the names of officers and directors of any sponsor of controversial issue airtime. All material furnished by CLEINT for broadcast on the DMTV and/or TUBOX shall include any and all sponsorship identification announcements as required by Section 317 of the Communications Act of 1934, as amended, and the FCC’s or other Broadcast Authority’s rules and regulations, and DMTV shall undertake in good faith to determine each instance where such announcements are required. To assist DMTV in its partnership time sales efforts, CLIENT shall, during the term of this Agreement, maintain the same television network affiliation that is in effect on this date, unless ninety (90) days advance written notice of an affiliation change is given to DMTV.
Payments.During the term of this Agreement, CLIENT will make a deposit of $5,000 to DMTV on effective date of contract. 11 Monthly Payments of $5,000 to be paid for a period of 11 months. Total contract will be for the amount of USD of $60,000. Terms of total sum will be determined prior to original broadcast.
Interruption of Normal Operations.If DMTV or TUBOX suffers loss or damage of any nature to its transmission facilities which results in the interruption of service or the inability to operate full time at maximum authorized facilities, DMTV shall immediately notify CLIENT and shall undertake such repairs as are necessary to restore the full-time operation. If the DMTV does not resume operation with at least 80% of its authorized signal coverage within one hundred twenty (120) hours, DMTV shall so notify CLIENT. Upon receipt of such notification, CLIENT may, at its option, terminate this Agreement. In such event, CLIENT shall be entitled to a pro ratarefund of the payments made pursuant to Section 3 hereof. This section excludes acts of God, War or Terrorism.
Delivery of Material for Broadcast.All on air broadcast material furnished by CLIENT for broadcast on DMTV shall be delivered to DMTV via electronic delivery, or other mutually agreeable method, in a format to be agreed upon by DMTV and CLIENT, in a form ready for broadcast on the DMTV’s existing playback equipment, and with quality suitable for OTT streaming and Radio broadcast. DMTV shall not be required to provide production services or to copy, reformat, or otherwise manipulate material furnished by CLIENT other than uploading media in electronic form for broadcast.
DMTV’s Representations and Warranties.
- DMTV represents and warrants as follows:
- There is not now pending, nor to DMTV’s best knowledge is there threatened, any action by the FCC or any other party to revoke, cancel, suspend, refuse to renew or otherwise modify any of such licenses, permits or authorizations.
- DMTV is not in material violation of any statute, ordinance, rule, regulation, policy, order, or decree of any federal, state, or local entity, court, or authority having jurisdiction over it, the Station, or over any part of their operations or assets, which default or violation would have a materially adverse effect upon CLIENT, its assets, or upon DMTV’s ability to perform this Agreement.
- During the term of this Agreement, CLIENT shall not take any action or omit to take any action which would put it in material violation of or in default under any agreement to which DMTV or its owners is a party, which default or violation would have a material adverse impact upon DMTV, its assets, or upon DMTV’s ability to perform this Agreement.
- To the knowledge of DMTV, all material reports and applications required to be filed by DMTV with the FCC or any other governmental body prior to the date hereof have been filed in a timely and complete manner. During the term of this Agreement, DMTV will file all reports and applications required to be filed with the FCC or any other governmental body in a timely and complete manner. DMTV will maintain the facilities and equipment in accord with good engineering practice and in compliance in all material respects with the engineering requirements set forth in the Station’s FCC licenses, including broadcasting at substantially maximum authorized power (except at such time that reduction of power is required for routine or emergency maintenance); provided, however, that CLIENT acknowledges that DMTV currently is operating the broadcasts pursuant to authority at a power level in its assigned authorized power level.
- DMTV may, during the term of this Agreement, dispose of any of its assets or properties, so long as:
- such action does not adversely affect Station’s ability to perform its obligations hereunder; and
- such action does not abrogate any of DMTV’s rights hereunder.
- DMTV and CLIENT each represent and warrant to the other that it has the power and authority to enter into this Agreement and to engage in the transactions contemplated by this Agreement. Each of DMTV and CLIENT are corporation’s in good standing in the state of its formation and qualified to do business. The signatures appearing for DMTV and CLIENT, respectively, at the end of this Agreement have been affixed pursuant to such specific authority as, under applicable law, is required to bind them. Neither the execution, delivery, nor performance by DMTV or CLIENT of this Agreement conflicts with, results in a breach of, or constitutes a default or ground for termination under any agreement or judicial or governmental order or decree to which DMTV or CLIENT, respectively, is a party or by which it is bound.
Events of Default
The following shall, after the expiration of the applicable cure periods, constitute Events of Default under the Agreement:
- Non-Payment. CLIENT’s failure to remit to DMTV any payment described in Section 3 above in a timely manner.
- Default in Covenants. The default by either party hereto in the material observance or performance of any material covenant, condition, or agreement contained herein, or if any material misrepresentation or warranty herein made by either party to the other shall prove to have been false or misleading as of the time made.
Cure Period and Termination upon Default.
An Event of Default shall not be deemed to have occurred until three (3) business days after the non defaulting party has provided the defaulting party with written notice specifying the event or events which if not cured would constitute an Event of Default and specifying the actions necessary to cure within such ten day period. The notice period provided in this Section shall not preclude DMTV from at any time preempting or refusing to broadcast any on air media furnished by CLIENT. If CLIENT has defaulted in the performance of its obligations and has failed to cure such default within the applicable time period, DMTV shall be under no further obligation to make air time available to CLIENT, and all amounts then due and payable to DMTV shall immediately be paid by CLIENT to DMTV in full.
DMTV reserves the right to enter into any on air broadcast time sales (except as permitted by Section 4 hereof), time brokerage, local marketing or similar agreement for the DMTV with any third party during the term of this Agreement.
Liabilities after Termination.
After the expiration or termination of this Agreement for any reason other than an assignment of the DMTV’s assets to the Station or any assignee of DMTV, (i) DMTV shall have full permission to broadcast content on all platforms until
CLIENT retains exclusive right to content. DMTV will deliver full all raw files and content immediately after event ends via electronic delivery.
CLIENT shall indemnify and hold DMTV and its officers, directors, stockholders, agents, and employees harmless against any and all liability for libel, slander, illegal competition or trade practice, infringement of trademarks, trade names, or program titles, violation of rights of privacy, and infringement of copyrights and proprietary rights resulting from or relating to the on air content, promotions or other material furnished by CLIENT for broadcast on the Station and DMTV, along with any fine or forfeiture imposed by the FCC because of the content of material furnished by CLIENT or any conduct of CLIENT. DMTV shall indemnify and hold CLIENT and its officers, directors, members, agents, and employees harmless from any failure by DMTV to broadcast on air material furnished by CLIENT except as permitted by Section 5 of this Agreement. Indemnification shall include all liability, costs, and expenses, including counsel fees (at trial and on appeal). The indemnification obligations under this Section shall survive any termination of this Agreement. The obligation of each party to indemnify is conditioned on the receipt of notice from the party making the claim for indemnification in time to allow the defending party to timely defend against the claim and upon the reasonable cooperation of the claiming party in defending against the claim. The party responsible for indemnification shall select counsel and control the defense, subject to the indemnified party’s reasonable approval, provided, however, that no claim may be settled by an indemnifying party without the consent of the indemnified party, and provided further, that if an indemnifying party and a claimant agree on a settlement and the indemnified party rejects the settlement unreasonably, the indemnifying party’s liability will be limited to the amounts the claimant agreed to accept in settlement. DMTV and CLIENT shall each carry (A) comprehensive general liability insurance with reputable companies covering their activities under this Agreement, in an amount not less than One Million Dollars ($1,000,000.00); (B) worker’s compensation and/or disability insurance (where applicable); and (C) libel/defamation/First Amendment liability insurance.
No Partnership or Joint Venture.
The Agreement is not intended to be, and shall not be construed as, an agreement to form a partnership, agency relationship, or a joint venture between the parties. Except as otherwise specifically provided in the Agreement, neither party shall be authorized to act as an agent of or otherwise to represent the other party.
Successors and Assigns.
Neither party may assign its rights and obligations under this Agreement, either in whole or in part, without the prior written consent of the other; however, such consent shall not be unreasonably withheld. The covenants, conditions and provisions hereof are and shall be for the exclusive benefit of the parties hereto and their permitted successors and assigns, and nothing herein, express or implied, is intended or shall be construed to confer upon or to give any person or entity other than the parties hereto and their permitted successors and assigns any right, remedy or claim, legal or equitable, under or by reason of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
Authority; Construction; Entire Agreement.
Both CLIENT and DMTV represent that they are legally qualified and able to enter into this Agreement, which shall be construed in accordance with the laws of the State of Florida without regard to principles of conflict of laws. This Agreement, the Shared Services Agreement which the Parties have entered into embody the entire agreement between the parties with respect to the subject matter hereof and thereof, and there are not other agreements, representations, or understandings, oral or written, between them with respect thereto.
Modification and Waiver.
No modification or waiver of any provision of the Agreement shall be effective unless in writing and signed by the party against whom such modification or waiver is asserted, and no failure to exercise any right, power, or privilege hereunder shall operate to restrict the exercise of the same right, power, or privilege upon any other occasion nor to restrict the exercise of any other right, power, or privilege upon the same or any other occasion. The rights, powers, privileges, and remedies of the parties hereto are cumulative and are not exclusive of any rights, powers, privileges, or remedies which they may have at law, in equity, by statute, under this Agreement, or otherwise.
If any provision of this Agreement or the application thereof to any person or circumstances shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law, except that if such invalidity or unenforceability should change the basic economic positions of the Parties, they shall negotiate in good faith such changes in other terms as shall be practicable in order to restore them to their prior positions. In the event that the FCC alters or modifies its rules or policies in a fashion which would raise substantial and material questions as to the validity of any provision of this Agreement, the Parties shall negotiate in good faith to revise any such provision of this Agreement in an effort to comply with all applicable FCC rules and policies, while attempting to preserve the intent of the Parties as embodied in the provisions of this Agreement. The Parties agree that, upon the request of either of them, they will join in requesting the view of the staff of the FCC, to the extent necessary, with respect to the revision of any provision of this Agreement in accordance with the foregoing. If the Parties are unable to negotiate a mutually acceptable modified Agreement, then either party may terminate this Agreement upon written notice to the other, and each Party shall be relieved of any further obligations, one to the other.
This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
The headings are for convenience only and will not control or affect the meaning or construction of the provisions of this Agreement.
Any schedules attached hereto are an integral part of this Agreement with the same force and effect as if set forth in full in the text of the Agreement.
CLIENT to provide DMTV with high bandwidth internet signal (preferably via ethernet cable), full access to venue and guests, logos/graphics. CLIENT to also provide adequate space, storage and electric connection to DMTV to allow for services to be fulfilled.
CLIENT may be eligible for additional services including but not limited to independent OTT streaming signal, unique OTT channel and marketing support from DMTV. These services are not included in this contract.
Waiver of Jury Trial.
AS A SPECIFICALLY BARGAINED INDUCEMENT FOR EACH OF THE PARTIES TO ENTER INTO THIS AGREEMENT (EACH PARTY HAVING HAD OPPORTUNITY TO CONSULT COUNSEL), EACH PARTY EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN.
VIDEO PRODUCTION AND BROADCAST AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.