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HomeMy WebLinkAbout2000-260 Agrmt - NCTC National Cable Television Cooperative l\lem her L.\.greement This Member Agreelnent is entered into as of ., Television Cooperative, Inc. ("NCTC") and , 2000 by and between National Cable ("Member") . ,/'\ , - 1 ~ Whereas, N CTC was organized with the goal of reducing the operating costs of its cable television system members by, among other things, combining the individual purchasing power of its members to achieve economies of scale; \Vhereas, NCTC has entered into master agreements with various video programming vendors, hardware purchase relationships with various hardware vendors, and other arrangenlents with other service providers; . Whereas, Member either is, or wishes to become. a member of NCTC and has delivered to NCTC a membership application (the "Membership Application"), Whereas, N CTC and Member wish to formalize the relationship between them in accordance with this Agreement. Now. therefore. in consideration of the mutual promises described below, the parties agree as follows: 1. Membership Eligibility. Membership in NCTC is available to an organization engaged in the business of providing television reception or service for the public primarily by means of a cable television system (as defined in 47 U. S. C. Section 602 (6)). Member represents that it meets this, and any other applicable membership eligibility requirements and is either operating a cable television system or has demonstrated to NCTC' s satisfaction that it is constructing a cable television system. Member will provide any documentation requested by NCTC to verify its eligibility under this Section and NCTC's bylaws 2. Binding Effect of Bylaws. ~1ember understands that the bylaws of NCTC, together with the terms of this Agreement, describe and define the relationship between Member and NCTC. Member agrees to abide by all terms of the bylaws and this Agreement. The current copy of the bylaws of NCTC is attached as Exhibit A. These bylaws may be amended from time to time (under the procedures described in the bylaws) and. in the event of such an amendment the amended bylaws wi11 be provided to l\1ember and l\1ember \\/i11 be bound by any such amendn1ents (provided, however. Men1ber will have a right to terminate its mernbership in NCTC \vithin ten (10) days if it is not satisfied with any amended bylaws). Som.e matters explicitly addressed in the bylaws are repeated in this agreement for clarity, but that should not be taken to limit the effect of other bylaws provisions not repeated. \tember cop! \JCTC Member.\::ue;:ment- . 16. Member Termination. The bylaws of NCTC (and NCTC's policy on member termination for past due payments attached as Exhibit C) describe the mechanism for terminating members no longer eligible for membership or who have violated tenns of the bylaws. NCTC will have a similar right to terminate a member who is in Default under this Agreement. Upon tennination of Member's membership in accordance with the bylaws, the policy on member termination, or this section, Member will have no further rights under this agreement, or under any Master Agreement it has entered into as a member of NCTC (including, without limitation, any right to rebates), and will inunediately return all NCTC Confidential Information in its possession. Upon tennination Member will have no right to re-payment of any previously paid membership fees or member dues. After tennination, Member will remain obligated to pay all amounts due to NCTC or others under any pre-existing agreements and will continue to be bound by the provisions of Sections 10 ." 20 of this Agreement. 17. Notices. Any notice required under this Agreement will be effective if given in writing, and addressed to Member at the address set fonn in the Membership Application (or any substitute addresses of which NCTC is given proper notice) or if to NCTC addressed to its principal address. Notice will be effective three days after mailing in US mail, certified mail return receipt requested, or one day after being sent by reputable overnight courier. 18. Governing Law. This agreement will be governed by, and construed in accordance with, the laws of the state of Kansas (without regard to any conflicts of laws principles). 19. Entire Agreement. This Agreement, together with the bylaws of NCTC and any other policy statements or other documents promulgated by NCTC in accordance with the bylaws, and the tenns of any applicable agreements relating to programming, service and hardware purchases, constitute the entire agreement between NCTC and Member. 20. Dispute Expenses. In any dispute arising under this Agreement, Member will reimburse NCTC for all attorneys' fees, costs and related expenses incurred in connection with any such dispute in which NCTC prevails. In Witness Whereof, NCTC and Member have executed this agreement as of the date set forth in the first paragraph above. National Cable Tele\,ision Cooperative, Inc. !\1ember By' Name' Title: ., '+ ~.-- By: Scott Abbott Vice President National Accounts NCTC Member Agreement .- vcc!sion 01/03/00 ~ National Cable Television Cooperative Member Agreement This Member Agreement is entered into as of Television Cooperative, Inc. ("NCTC") and , 2000 by and between r~ ational Cable (" Member") . Recitals. Whereas, NCTC was organized with the goal of reducing the operating costs of its cable television system members by, among other things, combining the individual purchasing power of its members to achieve economies of scale; Whereas, NCTC has entered into master agreements with various video programming vendors, hardware purchase relationships with various hardware vendors, and other arrangements with other service providers; Whereas, Member either is, or wishes to become, a member of NCTC and has delivered to NCTC a membership application (the "Membership Application"), Whereas, NCTC and Member wish to formalize the relationship between them in accordance - with this Agreement. Now, therefore, in consideration of the mutual promises described below, the parties agree as follows: 1. Membership Eligibility. Membership in NCTC is available to an organization lengaged in the business of providing television reception or service for the public primarily by means of a cable television system (as defined in 47 D.S.C. Section 602 (6)). Member represents that it meets this, and- any other applicable membership eligibility requirements and is either operating a cable television system or has demonstrated to NCTC's satisfaction that it is constructing a cable television system. Member will provide any documentation requested by NCTC to verify its eligibility under this Section and NCTC's bylaws 2. Binding Effect of Bylaws. Member understands that the bylaws of NCTC, together with the terins of this Agreement, describe and define the relationship between Member and NCTC. Member agrees to abide by all terms of the bylaws and this Agreement. The current copy of the bylaws of NCTC is attached as Exhibit A. These bylaws may be amended from time to time (under the procedures described in the bylaws) and, in the event of such an amendment, the amended bylaws will be provided to Member and Member will be bound by any such amendments (provided, however, Member will have a right to terminate its meInbership in NCTC within ten (10) days if it is not satisfied with any amended bylaws). SOIne matters explicitly addressed in the bylaws are repeated in this agreement for clarity, but that should not be taken to limit the effect of other bylaws provisions not repeated. NCTC Copy NCTC Member Agreement - version: 01/03/00 3. Membership Fees. Member has previously paid, or concurrently with the execution of this agreement is paying, the initial membership fee described in the bylaws and the Member Application. As provided in the bylaws, NCTC may assess annual dues, and ~tlember agrees to .pay any such dues in the amounts, and at the times, specified by the Board of Directors. 4. Programming and Service Agreements. Member may elect to participate in purchasing programming and other services under master agreements negotiated by NCTC "Master Agreements"). NCTC will advise all members of the availability of Master Agreements and will afford members an opportunity to participate, subject to additional eligibility requirements or exclusions (penetration and otherwise) deemed appropriate by NCTC or provided in the applicable Master Agreements. If Member wishes to participate under a Master Agreement Member will execute a System Participation Form identifying the cable systems controlled by Member that will carry programming service under the ~v1aster Agreement, along with any other documents required in connection with the Master Agreement. Members are directly liable to the programming vendors for compliance with all terms of the Master Agreement. Complete copies of Master Agreements are available for inspection at NCTC's office and at NCTC's Internet WebSite, and photo copies will be provided to Member at no charge upon request. If Member elects to participate under a Master Agreement, it will be deemed to be aware of, and to have agreed to be bound by, all of the terms of the Master Agreement. NCTC RESERVES THE RIGHT TO DENY PARTICIPATION UNDER ANY MASTER AGREEMENT TO ANY MEMBER, IN NCTC'S SOLE DISCRETION. MEMBERS ARE FREE TO PURCHASE ANY PROGRAMMING AND OTHER SERVICES INDEPENDENTLY OF NCTC. 5. Master Agreement Renewals. Some Master Agreements may provide for automatic renewal unless a member elects to terminate prior to a specified date. While NCTC will normally attempt to advise its members of upcoming renewal dates, it is not obligated to do so and Member must maintain appropriate contract administration records. \Vhether or not there is automatic renewal, in some cases a member may continue to carry programming after a new agreement term has taken effect but without executing a new agreement. It is Member's responsibility to discontinue service if it does not intend to remain obligated, and . Me~ber will be responsible for all liability and costs (and will indemnify NCTC from any liability and costs, including attorneys' fees) arising from a programmer's claiIn that a member is bound as a result of continued carriage. 6. Master Agreement Amendments. NCTC may determine that it is in the best interest of its members that the terms of Master Agreement be modified (to settle a dispute 'with the programmer or otherwise). In that situation, NCTC will use reasonable comlnercial efforts to afford all members an opportunity to elect to no longer participate under the aInended agreement. Member understands and agrees, however, that it may not be able to continue carriage under the terms of the previous version of the amended agreement. In addition, Member agrees to continue to be bound by the terms of any Master Agreemenlt that is modified by NCTC in a manner that is not materially detrimental to Member. NCTC Member Agreement - version: 01/03/00 2 7. Hardware Purchases. NCTC assists members in the procurement of hardware as an independent dealer or distributor, and has entered into hardware purchase arrangements with various hardware vendors. Members electing to purchase hardware through NCTC will do so subject to the terms of NCTC's hardware invoice. Copies of all such terms will be made available by NCTC, and if Member elects to purchase hardware will be deemed to be aware of, and to have agreed to be bound by, all the terms of those documents. All hardware sold to Member is intended for use by Member and is not for immediate resale (subdistribution) by Member. 8. Security Agreements for Hardware Purchases. Member hereby grants to NCTC, and NCTC retains, a purchase money security interest in all goods purchased by Member from N CTC, when ever purchased and wherever located. This security interest will continue until NCTC has received full payment for the goods. Member agrees to execute any financing statements and more detailed security agreements upon NCTC's request, and to provide any ad~itional information requested by NCTC, including the location where the hardware will be located. 9. Timely Payment~. NCTC's ability to achieve its goal of reducing the operating costs of its members is highly dependent upon NCTC receiving timely payment of all amounts owed by a Member under in a Master Agreement or hardware purchase arrangement. Me;mber must pay all amounts due on or before the due date specified in the applicable Master Agreement or hardware purchase arrangement or specified on NCTC's invoice, whichever is earlier. NCTC has adopted the policy on the expulsion of delinquent members attached as Exhibit C and intends 'to continue to adhere to the terms of this policy. NCTC has the right to impose late payment fees without notice to members. 10. Rebate Procedure. From time to time rebates may be paid by NCTC to membt~rs who have participated under certain programming agreements. Except as otherwise required under the terms of specific programming agreements, the amount and timing of such paY1nents, and the manner in which they are allocated to members, is in NCTC's sole discretion. After termination a Member has no right to any future rebate payments, regardless of the whether any such rebates were "earned in" or relate to a period prior to termination. l'~CTC may set off rebates otherwise payable to Member against other amounts owed by Member to NCTC or to third party vendors under Master Agreements. 11. Confidentiality. As a member of NCTC, Member will have access to confidential and proprietary information belonging to NCTC ("NCTC Confidential Information"). Among other things, NCTC is contractually bound to maintain the confidentiality of Master Agreement terms and hardware purchase arrangement terms and members electing to participate under those agreements will have a similar confidentiality obligation. These agreement terms and programming fees, along with (but not limited to) hardware prices quoted by NCTC, volume discount levels, promotional and marketing support opportunities and all information concerning the relationships between NCTC and its membe:rs, are included in "NCTC Confidential Information." Member agrees to preserve confidentiality of all NCTC Confidential Information and not disclose that information to any third party (except to employees with a need to know and who have been advised of the confidential NCTC Member Agreement - version: 0 I /03/00 3 nature of the information), or use that information in any way except in direct connection with the operation of Member's cable television system, without the prior written consent of NCTC. The use of this information for purposes of negotiating a separate, more favorable arrangement with a programming, hardware or other service provider, or similar misuse of NCTC Confidential Information for Member's own benefit to the detriment of NCTC is not permissible. This obligation will not apply to information shown by Member to be in the public domain through no fault of Member, known by Member prior to disclosure by NCTC, or provided to Member by a third party not under any confidentiality obligation. Members that are municipalities or are otherwise subject to a "freedom of information" Jlaw or statute agree and represent that NCTC Confidential Information is not subject to disc]osure under that law or statute. Member's obligations under this Section will survive termination of this Agreement or Member's membership in NCTC. 12. Representations and Warranties of Member. Member represents and warrants to N CTC that all information contained in the Membership Application or otherwise provided to NCTC by Member at any time is complete and accurate, and that all representation and warranties made by Member under any Master Agreement (or other agreement entered into by N CTC) will be complete and accurate. 13. Indemnification. Member agrees to indemnify NCTC from against any liability and costs (including attorneys fees) incurred by NCTC as a result of Member's breach of this agreement or other obligation to NCTC, breach of any of the terms of any Master Agreement under which member has elected to purchase goods or services, breach of any terms of any agreements with respect to hardware purchase and sale, or any disputes betwee:n members or between Member and a programmer or other vendor. This obligation will survive termination of this Agreement or Member's membership in NCTC. 14. Limit on NCTC Liability. NCTC will use its best efforts to negotiate favorabJe Master Agreements and hardware purchase arrangements. The final decision on whether to accept the terms of these agreements rests solely with Member. Member agrees that :NCTC will not be liable to Member for any damages (actual, consequential, or otherwise) arising from the terms of any Master Agreement or hardware purchase arrangement negotiated by NCTC or arising from any other conduct of NCTC. 15. Default. Member will be considered in "Default" under this Agreement if (i) it breaches any obligation to NCTC under this Agreement or otherwise and fails to cure that breach upon ten (10) days notice by NCTC; or (ii) it breaches any obligation under any Master Agreement or other agreement negotiated by NCTC under which Member participates; or (iii) otherwise engages in conduct reasonably determined by NCTC to not be in the best interests of NCTC; or (iv) fails to participate under any Master Agreement or other arrangement offered by NCTC within one (1) year of the date of this Agreement. Upon default NCTC may terminate Member as described below, pursue damages from Member, and/or limit Member's access to information from NCTC or opportunities to participate under NCTC programnling or other arrangements. NCTC Member Agreement - version: 01/03/00 4 16. Member Termination. The bylaws of NCTC (and NCTC's policy on member termination for past due payments attached as Exhibit C) describe the mechanism for terminating members no longer eligible for membership or who have violated terms of the bylaws. NCTC will have a similar right to terminate a member who is in Default under this Agreement. Upon termination of Member's membership in accordance with the bylaws, the policy on member termination, or this section, Member will have no further rights under this agreement, or under any Master Agreement it has entered into as a member of N CTC (including, without limitation, any right to rebates), and will immediately return all NCTC Confidential Information in its possession. Upon termination Member will have no right to re-payment of any previously paid membership fees or member dues. After termination, Member will remain obligated to pay all amounts due to NCTC or others under any pre-existing agreements and will continue to be bound by the provisions of Sections 10 - 20 of this Agreement. 17. Notices. Any notice required under this Agreement will be effective if given in writing, and addressed to Member at the address set form in the Membership Application (or any substitute addresses of which NCTC is given proper notice) or if to NCTC addr,essed to its principal address. Notice will be effective three days after mailing in US mail, certified mail return receipt requested, or one day after being sent by reputable overnight courier. 18. Governing Law. This agreement will be governed by, and construed in accordance with, the laws of the state of Kansas (without regard to any conflicts of laws principles). 19. Entire A~reement. This Agreement, together with the bylaws of NCTC and any other policy statements or other documents promulgated by NCTC in accordance with the bylaws, and the terms of any applicable agreements relating to programming, service and hardware purchases, constitute the entire agreement between N CTC and Member. 20. Dispute Expenses. In any dispute arising under this Agreement, Member will reimburse NCTC for all attorneys' fees, costs and related expenses incurred in connection with any such dispute in which NCTC prevails. In Witness Whereof, NCTC and Member have executed this agreement as of the date set forth in the first paragraph above. By: Name: Title: National Cable Television Cooperative, Inc. By: '?i#OtteI:C Scott Abbott Vice President, National Accounts Member NCTC Member Agreement - version: 01/03/00 5