HomeMy WebLinkAbout2000-160 Agrmt AMND - DCTVSeptember 14, 2000
Personal & Confidential
Via Federal Express
Pete Lovrovich
City of Ashland, Oregon by and through its Electric Utilities' Fiber Network Division Fiber
Network
90 N. Mountain Ave.
Ashland, OR 97520
Dear Pete:
Pursuant to our discussions regarding proposed amendments to the DCTV Affiliation
Agreement entered into between City of Ashland, Oregon by and through its Electric Utilities'
Fiber Network Division Fiber Network ("ASHLAND") and DC-iV, Inc. ("DCTV") during July 2000
(the "DC'IV Agreement"), ASHLAND and DC'IV hereby enter into this new Agreement ("DCTV
Feeds Agreement") as of the date it has been signed by the last signatory (the "Effective Date"),
which shall entirely supercede and replace the DC'IV Agreement and sets forth the new terms
and conditions agreed upon for ASHLAND's distribution of DCTV's pay-per-view ("PPV") movie,
music and event digital feeds programming service ("DCTV PPV Feeds") to its cable
subscribers in such ASHLAND cable systems as ASHLAND and DC'IV may mutually agree
upon in writing (each a "System"), each of which shall be designated on Schedule A hereto.
RECITALS:
A. On October 15, 2000, DC'IV will cease to provide for ASHLAND the access control,
customer service, marketing/co-op funds, equipment reimbursement, billing and related
transactional functions (the "Customer Services") heretofore agreed to be provided by DCTV
under the DC-P,/Agreement;
B. The DCTV Agreement shall (i) terminate and no longer be of any legal force or effect as
of the Effective Date and (ii) be replaced by this DCTV Feeds Agreement;
C. ASHLAND shall assume sole responsibility for providing the Customer Services for its
cable subscribers, either itself or through a third party of ASHLAND's choice; and
D. Between the Effective Date and October 15, 2000, DC-IV shall continue to provide the
Customer Services for ASHLAND in such manner and for such duration as the parties may
mutually agree upon.
The terms and conditions of this DCTV Feeds Agreement are as follows:
1. The DCTV PPV Feeds programming consists of up tc 32 digitally compressed and
encrypted channels of TVN transmitted PPV movies and special events, a suite of up to 40
digital music channels, and an unencrypted preview/barker channel for such PPV movies and
events. DCTV utilizes Motorola's (formerly General Instrument) cable industry standard,
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10880 Wilshire Boulevard, Suite 1700, Los Angeles, California 90024" 310.234.3700 Fax: 310.234.3701 · www.tvn.com
interoperable DC II-MPEG 2 digital compression and encryption protocols to encode the DCTV
PPV Feeds which are uplinked to DCTV transponders currently on the Galaxy X satellite ("G-
l0'').
2. DCTV will use commercially reasonable efforts to provide the playback, digital encoding,
encryption, uplink and satellite transmission of the DCTV PPV Feeds, with PPV movies
scheduled in a near-video-on-demand ("NVOD") format and transmitted in continuous showings
24 hours a day, via digital video streams (channels). DC-IV PPV Feeds are currently
transmitted in digital format from DCTV's G-10 C-band transponders (currently nos. 7, 9, 12 and
13). DCTV will cooperate with ASHLAND for ASHLAND to obtain (i) third party conditional
access services for the authorization of the DC-IV PPV Feeds and (iii) such other digital
programming as ASHLAND may request and DCTV agrees to provide. ASHLAND may
request DCTV to provide adult digital programming (AdulTVision, Playboy Channel and/or other
adult programming) if requested by ASHLAND on Schedule C hereto as are part of the DCTV
PPV Feeds Service, and DCTV may provide such service(s) as available to it.
3. ASHLAND will prepare each System head-end to receive the DCTV PPV Feeds, utilizing
ASHLAND's own digital head-end receiving, modulation and retransmission equipment.
ASHLAND will be responsible for downlinking, transcoding and modulating the digitally
compressed DCTV PPV Feeds at each System head-end, and then for PPV distribution to its
subscribers via the cable infrastructure in each System. ASHLAND will be responsible for all
costs incurred by it to downlink the DCTV digital PPV signals at each System head-end, and to
retransmit for reception by each subscriber who orders a DC-IV PPV movie or event. DCTV will
provide technical information and cooperate with ASHLAND so it may receive, decode,
modulate and retransmit DCTV's digital signals. ASHLAND will be solely responsible for all
PPV order processing for its subscribers, (authorization and deauthorization utilizing its own or
third party contracted for conditional access), customer service, marketing, equipment
acquisition, billing and collection services, and neither DCTV nor TVN shall have any
responsibility to provide or oversee the provision of any of such services.
4. ASHLAND will timely launch, distribute and regularly and actively market, promote and
offer DCTV PPV Feeds for ordering by its digitally equipped subscribers and will utilize DCTV's
proprietary trade and service marks identified in Schedule B hereto ("DCTV Proprietary Marks")
as mutually agreed for the Service. ASHLAND will install at least one DC II interoperable digital
set-top cable converter and companion remote control in the home of each of its digital tier
cable subscribers to permit PPV ordering, and will instruct and train such subscriber in their
proper use and features for ordering DCTV delivered PPV movies and events. If ASHLAND
implements impulse ordering for PPV service ("IPPV"), ASHLAND installers will connect each
subscriber's home telephone line, or an RF return path, to the digital set-top when it is installed,
to enable IPPV ordering of DCTV PPV Feeds.
5. DCTV transmitted PPV movies will be jointly priced by ASHLAND and DCTV in each
System, and will be charged by ASHLAND directly to its subscribers on their monthly cable bills
or billed by a service bureau. PPV special events will be priced by DCTV on an event-by-event
basis, and also charged by ASHLAND directly to its subscribers on its monthly cable bills.
ASHLAND will provide to DCTV within thirty (30) days of the end of each month during the Term
hereof, a report in electronic format (Excel or Access only) listing the total number of orders
("buys") from ASHLAND subscribers in each System for DCTV delivered PPV movies and
events shown during that month ("Monthly Report").
10880 Wilshire Boulevard, Suite 1700, Los Angeles, California90024 · 310,234.3780 Fax:310.2343701 · wwwtvr~co~'~
6. In consideration of DCTV's services in providing the DC'IV PPV Feeds to ASHLAND
hereunder, during the term of this Agreement, ASHLAND shall pay to DCTV each month (i) sixty
percent (60%) of the total gross amounts billed by ASHLAND during the preceding month to its
subscribers for their orders of DCTV transmitted PPV movies, events and programs (including
adult programming as requested by ASHLAND and provided by DCTV), with a minimum of
$2.37 for each such movie order, (ii) a fee for DCTV PPV special events determined on an
event-by-event basis, and (iii) thirty cents ($0.30) per digital subscriber for providing the DCTV'
PPV Feeds service, including the suite of up to 40 digital music channels (collectively the
"DC'IV PPV Fees"). DC-iV PPV Fees will be payable by ASHLAND along with its Monthly
Report on DCTV transmitted PP¥ movie and event buys within thirty (30) days of the end of the
month during which the movies or events were purchased ("Monthly Due Date"). ASHLAND
shall be solely responsible for reporting all DCTV PPV movie and event buys to DC'IV. All
DCTV PPV Fees payments due from ASHLAND to DCTV that remain unpaid on the Monthly
Due Date are subject to interest thereon from the due date at 1.5% per month or, if lower, the
maximum rate permitted by law, calculated pro rata for each day after the due date until the
date of payment. In addition, DCTV reserves the right, upon ten (10) days prior written notice to
ASHLAND, to discontinue provision of the DCTV PPV Feeds service and terminate this DCTV
Feeds Agreement in the event payment of any amounts due hereunder are more than sixty (60)
days past due and ASHLAND has failed to cure such delinquency during such period. DCTV
will be responsible for reporting all DCTV PPV buys and paying applicable license fees to each
respective film licensor and event distributor in accordance with its license/distribution
agreements with such entities.
7. ASHLAND will promote the DCTV PPV Feeds on-air, in its cable guides and by such
other means as may mutually be agreed upon.
8. ASHLAND will monitor the transmission quality of the DCTV PPV programming
delivered from the System head-end to its subscribers, and will use reasonable commercial
efforts to maintain delivery of high quality digital video and audio signals to the home, and to
correct such problems as may arise with its re-transmission of the DCTV PP¥ Feeds.
ASHLAND will distribute the Dc'rv PPV Feeds as transmitted by DCTV, without alteration,
editing, insertions or delay of any kind, except as may be otherwise expressly permitted in
writing by DC'IV, as required by the FCC for use of its Emergency Broadcast System, or as
required by applicable law or regulation.
9. The term of this DCTV Feeds Agreement is three (3) years, commencing on October 1,
2000 (the "Term"). Provided all balances for DCTV Monthly Service Fees have been paid,
ASHLAND may terminate this agreement by giving DCTV at least ninety (90) days written notice
of termination thereof. Upon such termination, ASHLAND shall immediately reimburse DCTV
the sum of $932.64 multiplied by the number of outstanding months left in the term. DCTV may
terminate this agreement by giving ASHLAND at least ninety (90) days written notice of
termination thereof.
10. During the Term, ASHLAND will not, directly or indirectly, offer or provide to its cable
subscribers any other digital format PPV movie, special event or adult programming (if offered),
however delivered, other than with DCTV's prior written approval and as part of the DCTV PPV
Feeds pursuant to the terms of this DCTV Feeds Agreement.
11. Both parties will keep and maintain accurate books and records for determining the
DCTV PPV Fees owed by ASHLAND to DCTV. During the Term hereof and for two (2) years
thereafter, ASHLAND's books and records shall be available for inspection and audit by DCTV,
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10880Witshire Boulevard, Suite 1700, Los Angeles, California 90024 · 310.234.3780 Fax: 310.234 3701 · wwwtvncom
it's employees or agents, at it's expense and at ASHLAND's offices. Such inspection or audit
will be conducted with reasonable advance notice to ASHLAND, the scope of which shall be
specifically limited to items relevant to the economic terms of this Feeds Agreement. Should the
audit reveal a reporting and payment discrepancy of more than five percent (5%), then
ASHLAND shall, in addition to satisfying the discrepancy by payment of all DCTV PPV Fees
due therefore, pay DCTV's reasonable expenses and costs for the conduct of such audit.
12. ASHLAND may request that DCTV provide additional digital programming services, that
DCTV may transmit as part of its DCTV PPV Feeds service, as part of ASHLAND's digital tier
of services in one or more Systems, as designated by ASHLAND, for a DC'IV agreed upon
monthly service fee, which shall be incorporated in Schedule C hereto.
13. ASHLAND will take commercially reasonable security measures to prevent reception of
any of the DCTV PPV Feeds by a person or entity that is not an authorized ASHLAND
subscriber. ASHLAND will not provide any free or discounted DCTV PPV Feeds to any
subscriber or third party, except as part of a mutually approved promotion for DC'IV PPV Feeds
services.
14. Except as expressly set forth in this DCTV Feeds Agreement, ASHLAND acknowledges
and agrees that it has, and shall have no right or interest in (il the DC'IV PPV Feeds,
programming content, preview channel or interstitial materials, (ii) any of DC'I-V's Proprietary
Marks, or (iii) the digital music suite and any other DCTV provided programming content or
materials, all of which are expressly reserved hereby and shall remain the rights and property of
DCTV and/or TVN.
15. Except as herein provided to the contrary, neither party shall have any rights against the
other party hereto for the non-operation of facilities (including any satellite, transponder or head-
end equipment failure) or DCTV's or ASHLAND's failure to deliver the DCTV PPV Feeds if such
non-operation or failure is due to any act of God; inevitable accident; fire; lockout; strike or other
labor dispute; riot or civil commotion; act of government or a governmental instrumentality
(whether federal, state or local); failure in whole or in part of such transmission facilities or
equipment; or any other cause beyond such party's commercially reasonable control.
16. If during any month of DCTV's service hereunder, as a result of any cause beyond
DCTV's reasonable control, one or more of its digital PPV feeds are interrupted as a result of
failure of a function, equipment, service or facility required to be provided by DCTV or a DCTV
vendor hereunder, ASHLAND's sole and exclusive remedy shall be that if it must refund or
credit any fees payable by its cable subscribers for access to the DCTV delivered PPV service
because of such failure, the DCTV PPV Fees otherwise payable by ASHLAND pursuant to this
Feeds Agreement with respect to such month shall be decreased by the amount of such
reduction or credits actually granted to subscribers by ASHLAND. Subject to the provisions of
paragraph 15 hereof, if DCTV fails to transmit its digital PPV feeds to ASHLAND for a
cumulative lO-day period during any term year hereof, ASHLAND shall have the right to
terminate this agreement without damages. DCTV shall have no liability or responsibility to
ASHLAND if a DCTV vendor fails or refuses to provide a service or product that is part of, or is
necessary for the delivery of the DC'TV PPV Feeds. In no event shall (il either party have any
liability to the other, whether regarding its obligations hereunder or otherwise, for consequential,
exemplary, punitive or incidental damages, or anticipated lost profits, and (ii) DCTV's liability in
tort or contract exceed the amount of the DCTV PPV Fees actually paid by ASHLAND to DCTV
during one (1) year period immediately prior to the event giving risk to such liability.
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10880 Wilshire BouLevard, Suite 1700, Los Angeles, California 90024 · 310,234,3780 Fax: 310,2343701 · wwwtvn.¢ocn
17. Without the prior written consent of the other, neither ASHLAND nor DCTV shall disclose
to any third party (other than its respective employees, in their capacity as such, and who have
a need to know in the performance of their ordinary employee functions, or parties with which
ASHLAND or DCTV is participating in a joint venture and which have a need to know as part of
such joint venture), any information with respect to the terms or provisions of this Feeds
Agreement.
18. Neither ASHLAND nor DC'IV shall be, or hold itself out as, the agent of the other.
Nothing contained herein shall be deemed to create, and the parties do not intend to create, any
relationship of partners, joint ventures or agents, as between ASHLAND and DC'IV, and neither
party is authorized or shall act toward third parties or the public in any manner which would
indicate any such relationship with the other.
19. This document (including attached Schedules A, B and C, which are by this reference
incorporated into and made a part of this DC'IV Feeds Agreement) contains the entire
agreement and understanding of the parties, and supersedes all prior negotiations, agreements
and understandings of the parties relating to the subject matter hereof, all of which are deemed
merged herein, and it may not be modified except in writing signed by both parties hereto. This
DC-IV Feeds Agreement, and all disputes, issues and performance arising out of or related
hereto, shall be governed by, construed and interpreted in accordance with the laws of the State
of California, without regard to its conflict of law provisions. Any dispute, issue or claim between
the parties arising under or related to this DCTV Feeds Agreement, including, without limitation,
its interpretation, performance and/or termination, shall be resolved by arbitration under the
Commercial Arbitration Rules of the American Arbitration Association in Burbank, CA. Each
party waives its right to a trial by judge or jury for any such dispute, issue or claim. The
provisions of this Feeds Agreement are for the exclusive benefit of the parties hereto and their
assigns and legal successors, and no third party shall be a beneficiary of, or have any rights by
virtue of, this Feeds Agreement.
If this DCTV Feeds Agreement meets with your approval, kindly sign below where
indicated to confirm that these are the terms and conditions agreed upon for ASHLAND's
distribution of the DCTV pay-per-view ("PPV") movie, music and event digital feeds service
("DCTV PPV Feeds").
DCTV, Inc.
By:
Title:
Date Signed:
AGREED:
City of Ashland, Oregon by and through its
Electric Utilities' Fiber Network Division Fiber
Title: ~ i ~2~/~ ~
Date Signed: ~ -
5
10880 Witshire Boulevard, Suite 1700, Los Angeles, California 90024 · 310.234.3780 Fax: 310.234,3701 · wwwtvn.com
SCHEDULE a
City of Ashland, Oregon by and through its Electric Utilities' Fiber Network Division Fiber Network
System Profile
The City of Ashland by and through it's Electric Utiliti
Operator Name: Ashland Fiber Network
Type of entity; if corporation, indicate state of domtci{e
Federal Tax ID # ~7;,~'-/~>~//7
System Name if different: Ashland Fiber Network
System Address:
Contact Names:
Corporate: Pete Lovrovich
Tel: 541-488-5357
Fax: 541-488-5320
(Person who wilt receive Notices hereunder)
Parent Company (if applicable):
Total Number of Households Passed: est. 3000
Approximate Number of System Subscribers: Basic:
Addressable System: Yes: RF Return
Total Addressable Homes: 523
Current # of DCTV PPV Channels: 25
Current # of Adult Programming Channels:
Launch Date of DCTV PP¥ Feeds Service:
90 N. Mountain Ave. Ashland,
Technical:Patrick MOll
Tel: 541-488-5357
Fax: 541-488-5320
OR 97520
Marketing:}~.~,jT~L/~A~th
Te1:54.~-552-2316
Fax: 541-488-5320
No:
still building out plant
696 Digital: 60
2 (PB & Spice)
May 00 - New agreement October 16, 2000
To Be Filled Out in Full by Affiliate
6
10880 Wilshire Boulevard, Suite 1700, Los Angeles, California 90024 · 310.234,3780 Fax: 310~234 3701 · wwwtvn.com
SCHEDULE B
DC TV Proprietary Marks
DCTV - registration pending
DCTV Logo - registration pending
DCTV DIGITAL ENTERTAINMENT - registration pending
DCTV DIGITAL CABLE TELEVISION - registration pending
TVN - registered service mark
?
10880Wilshire Boulevard, Suite 1700, Los Angeles, California 90024 · 310.234.3780 Fax: 310.234.3701 · www.tvncom
SCHEDULE C
City of Ashland, Oregon by and through its Electric Utilities' Fiber Network Division Fiber
Network Selections
.......... : FCC
Servi~
2. DCTV PPV Fees:
Movies/Events*
DCTV Monthly Service Fees
ASHLAND shall pay directly to DC'iV sixty
percent (60%) of the total gross amounts billed
by ASHLAND for each subscriber order for PP¥
movies and events, with a minimum of $2.37 per
PPV movie order. *Unless the event distributor
requires greater than 50% license fees will be
adjusted accordingly.
Affiliate to Initial
3. Adult Programming:
(if requested by
ASHLAND and
provided by DCTV)
ASHLAND shall pay directly to DCTV sixty
percent (60%) of the total gross amounts billed
by ASHLAND for each subscriber order for an
Adult Program, with a minimum of $2.37 per
Adult program order.
10880Wilshire Boulevard, Suite 1700, Los Angeles, California 90024 · 310.234.3780 Fax: 310.234.3701 · www.tvncom
October :~3, 2000
Pete Lovrovich
City of Ashland, Oregon
90 N. Mountain Ave.
Ashland, OR 97520
Dear Pete:
! am pleased to enclose a mutually executed copy of the Amendment to the DC'TV
Affiliation Agreement (DCTV Feeds Agreement) between DCTV and City of Ashland,
Oregon (ASHLAND). The effective date of the Agreement is October 6, 2000, when it
was signed on behalf of DCTV.
!f you have any questions regarding the amendment and/or services please feel free to
contact me at 310.234.3780.
We look forward to working with you.
Respectfully yours,
~-'""'Linda LJ 81azy
10880 Wilshire Boulevard, Suite 1700, Los Angeles, California 90024 o 310.234.3700 Fax: 310.234.3701 · www,tvn.com
17. Without the prior written consent of the other, neither ASHLAND nor DCTV shall disclose
to any third party (other than its respective employees, in their capacity as such, and who have
a need to know in the performance of their ordinary employee functions, or parties with which
ASHLAND or DCTV is participating in a joint venture and which have a need to know as part of
such joint venture), any information with respect to the terms or provisions of this Feeds
Agreement.
18. Neither ASHLAND nor DCTV shall be, or hold itself out as, the agent of the other.
Nothing contained herein shall be deemed to create, and the parties do not intend to create, any
relationship of partners, joint ventures or agents, as between ASHLAND and DCTV, and neither
party is authorized or shall act toward third parties or the public in any manner which would
indicate any such relationship with the other.
19. This document (including attached Schedules A, B and C, which are by this reference
incorporated into and made a part of this DCTV Feeds Agreement) contains the entire
agreement and understanding of the parties, and supersedes all prior negotiations, agreements
and understandings of the parties relating to the subject matter hereof, all of which are deemed
merged herein, and it may not be modified except in writing signed by both parties hereto. This
DCTV Feeds Agreement, and all disputes, issues and performance adsing out of or related
hereto, shall be governed by, construed and interpreted in accordance with the laws of the State
of California, without regard to its conflict of law provisions. Any dispute, issue or claim between
the parties arising under or related to this DC-IV Feeds Agreement, including, without limitation,
its interpretation, performance and/or termination, shall be resolved by arbitration under the
Commercial Arbitration Rules of the American Arbitration Association in Burbank, CA. Each
party waives its right to a trial by judge or jury for any such dispute, issue or claim. The
previsions of this Feeds Agreement are for the exclusive benefit of the parties hereto and their
assigns and legal successors, and no third party shall be a beneficiary of, or have any rights by
virtue of, this Feeds Agreement.
If this DCTV Feeds Agreement meets with your approval, kindly sign below where
indicated to confirm that these are the terms and conditions agreed upon for ASHLAND's
distribution of the DCTV pay-per-view ("PPV") movie, music and event digital feeds service
("DCTV PPV Feeds").
DCTV, Inc.
Title:
Date Signed: JO/6/~ AGREED:
City of Ashland, Oregon by and through its
Electric Utilities' Fiber Network Division Fiber
Tithe: ~'"~( ¢~-,--
Date Signed: ~-
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10880 Wilshire Boulevard, Suite 1700, Los Angeles. California 90024 · 310.234.3780 :s~: 3~0.234.3701 · www.tvn.com