PLEASE READ THE WHOLE AGREEMENT CAREFULLY, THEN SUBMIT YOUR INFORMATION. SUBMISSION OF YOUR INFORMATION WILL INDICATE THAT YOU HAVE APPROVED AND AGREED WITH THE CONDITIONS OF THIS AFFILIATE AGREEMENT.
This Affiliate Advertising Agreement (the “Agreement”) is between Christian Library on Demand, LLC, (“CLD”) and (“Affiliate”) sets forth the terms and conditions that shall govern the advertising and promotion over Affiliate Systems by Affiliate for CLD. The parties, intending to be legally bound, hereby agree as follows:
Whereas, Affiliate desires to promote CLD to its customers and subscribers on Affiliate Systems, as determined by Affiliate, promotions provided by CLD on an monthly percentage of North American subscriber revenue basis; and
Whereas, CLD owns or otherwise has rights on its branding and wishes to grant Affiliate a license to use such CLD branding to encourage Affiliate’s customers and subscribers to encourage its local cable systems to carry CLD content and encourage Affiliate’s customers and subscribers to sign up for CLD subscription services via local cable systems.
Whereas, CLD agrees to share in the revenues of such subscription services a percentage with Affiliate on a quarterly basis based upon at set percentage described in the Fees section below.
Now, Therefore, CLD and Affiliate, in consideration of the mutual covenants set forth herein, and for other valuable consideration, the sufficiency and receipt of which is hereby acknowledged, agree as follows:
a.“Agreement” – see the Preamble.
b. “Alternative Stream(s)” – streaming or other delivery of content or Programs via the Internet or wireless broadband services provided through a wireless telephone company (Verizon, AT & T, etc.) or any other non-Television digital transmission or delivery method that is not traditional VOD delivery through a cable or satellite system. See definition of Television below.
c. “Affiliate” – see the Preamble.
d. “Affiliate System(s)” – those systems owned, operated, or managed by Affiliate and/or any entity controlling, controlled by, or under common control with, Affiliate. For example: websites, radio stations, TV stations, signage, etc…
e. “Subscriber” – an Affiliate customer who subscribes only to CLD subscription video on demand services.
f. CLD – see the Preamble.
g. “Effective Date” – The date of Affiliate submission.
h. “EnLive Service” – the subscription-based Television VOD package and / or Alternative Stream service offered by CLD that includes the Programs. The EnLive Service will consist of Christian-based entertainment programming comprised substantially of, but not limited to, original and acquired family, children, sports entertainment, music / concert, documentary, Christian motivational, and health / lifestyle programs, as well as acquired and CLD original feature films and short films. Most movie titles will be rated G or PG with some PG-13 titles. The EnLive Service may also include appropriate R-rated Christian-themed movie titles, provided that the title meets CLD programming standards in conveying Christian and / or family themes.
i. “EnLive Subscriber” – a VOD Subscriber or Broadband Subscriber who have access to the EnLive Service during a Reporting Period.
j. “Affiliate Fee” – the fee that Affiliate receive from CLD on a quarterly bases based upon the levels of EnLive Subscribership at that time.
k. “Message” – a sponsorship message (i.e. “this program is brought to you by….”) or a message promoting other currently scheduled or upcoming Programs. Such Messages shall not include the following:
i. Advertisements or promotions for products or services that include pornographic or obscene material, as determined in the reasonable discretion of Affiliate, or advertisements for any programming that has received, or had it been rated would have been reasonably likely to receive, an “X” or “NC-17” rating;
ii. Advertisements or promotions for any other multi-channel video distributor or other means or technology that distributes television programming services (e.g., direct broadcast satellite); Notwithstanding the above, the prohibitions set forth in this subparagraph shall be limited to advertisements or promotions related to the provision of cable and direct broadcast satellite services. To the extent an advertiser who provides such services wishes to advertise or promote other services that do not compete with Affiliate, such Messages shall not be prohibited.
iii. Advertisements or promotions for local telephony services in markets where Affiliate of any of its affiliates also offers telephony services (excluding any wireless carriers); or
iv. Advertisements or promotions for high speed data transmission and / or cable modem internet service providers.
l. “Movie” – a full length feature film.
m. “Program” – an individual movie, program or an episode of a series (or a segment of such episode if such segment is made available and separately identified as a Program) created or purchased by CLD for distribution as part of its EnLive Service.
n. “Programming” – the individual or combined hourly running times of Programs available to EnLive Subscribers on a monthly basis or á la carte.
o. “Reporting Period” – a calendar month.
p. “Retail Rate” – the fee that Affiliate will charge an EnLive Subscriber to access the EnLive Service.
q. “Television” – the terrestrial transmission of analog or digital video and audio signals through the air; the transmission of digital video and audio signals through cable, fiber optic cable or satellite transmission. Online streaming via the Internet is excluded from the definition of Television hereunder. See Alternative Streams above.
r. “Term” – see Section 3.
s. “VOD” – video-on-demand, (i.e., using technology that allows subscribers to select viewing content desired by such subscribers on an on-demand basis, such that each subscriber can start such programming upon the subscriber’s selection and thereafter control the playback of such programming). The cable, satellite or other digital transmission and exhibition of a Program or the EnLive Service on the television set, or other receiving equipment (i.e. monitor, computer, iPad, tablet, smart phone, etc.) of a VOD Subscriber, at such VOD Subscriber’s request in a manner such transmission may occur immediately or almost immediately upon such VOD Subscriber’s request.
t. “VOD Server” – a disk array storage device that accepts and stores video and data input and provides streaming media output including MPEG video.
u. “VOD Subscribers” – those VOD System monthly subscribers capable of accessing and viewing all Programs offers with the EnLive Service and á la carte Movies via VOD.
v. “VOD System(s)” – those Cable Systems actually distributing the EnLive Service to subscribers via VOD, as determined by CLD in its sole discretion.
2. Grant of Rights. Subject to the terms and conditions herein:
a. CLD grants to Affiliate, and Affiliate accepts, a non-exclusive right to promote and advertise the EnLive Service to each of Affiliate’s customers and subscribers in order to increase the subscribership of EnLive subscription VOD services and develop a revenue stream for affiliate from their promotions efforts.
b. CLD grants to Affiliate, and Affiliate accepts, a non-exclusive right to use its CLD and EnLive branding to accomplish section a.
c. Affiliate grants to CLD, and CLD accepts, a non-exclusive right to use Affiliate’s branding on CLD Systems to promote our affiliation accomplish section a.
3. Term; Termination
a. The Term of this Agreement shall begin on the Effective Date and shall run for a period of five (5) years, expiring on 5 years from the date of acceptance of this agreement, unless earlier terminated pursuant to the terms of this Agreement or extended by the parties in writing.
b. Either party may terminate this Agreement upon written notice to the other party if the other party commits a material breach of this Agreement, provided that the non-breaching party gives the breaching party written notice of such material breach and provides the breaching party with thirty (30) days to cure such material breach (or make reasonable progress toward curing such material breach if the breach is such that it cannot reasonably be cured within thirty (30) days). In the event the party who is not the alleged breaching party does not accept the cured performance of the alleged breaching party, the parties shall submit themselves to no-binding mediation to resolve the dispute, which shall be completed within 30 days from the retention of an independent third party mediator mutually selected by the parties.
c. Either party may terminate this Agreement immediately upon written notice to the other party if the other party (i) ceases doing business or, in the case of CLD, ceases providing the EnLive Service, (ii) is insolvent, (iii) files a voluntary, or is the subject of an involuntary, filing for bankruptcy, or (iv) is subject to a receivership.
4. Advertising; Promotions and Programming.
i. From the Effective Date of acceptance and for 5 consecutive years, CLD will provide and Affiliate shall promote the EnLive Service, a minimum 3 ad slots on its systems prominent to Affiliate’s customers and subscribers each month. The purpose of which is to ensure that at least a 1/4 of the daily views of its customers and subscribers are impressed by a CLD brand.
ii. From the Effective Date of acceptance and for 5 consecutive years, CLD will provide and Affiliate shall promote the CLD, a minimum 1 ad slot on its systems prominent to Affiliate’s customers and subscribers each month. The purpose of which is to ensure that at least a 1/6 of the daily views of its customers and subscribers are impressed by a CLD brand.
iii. When EnLive service is launched in a new market or on a new platform, CLD will provide and Affiliate shall promote the EnLive Service, a minimum 7 ad slots on its systems prominent to Affiliate’s customers and subscribers each month. The purpose of which is to ensure that at least a 1/2 of the daily views of its customers and subscribers are impressed by a CLD brand.
iv. From the Effective Date of acceptance and for 5 consecutive years, Affiliate will provide and CLD shall promote the Affiliate’s partnership with CLD, on CLD’s websites and in its promotional content to CLD’s customers and subscribers. Such promotions shall be integrated into CLD’s workflow and gradual appear across all CLD platforms.
v. Affiliate must adhere to CLD brand usage guidelines and CLD will adhere to Affiliate’s brand usage guidelines.
vi. Affiliate advertisements will link to CLD pages according to CLD specific directions for each art piece and purpose.
vii. Affiliate will confirm each ad placement with an email informing CLD of the location of each ad each month an ad is removed or placed in another spot.
viii. Affiliate has the sole right and discretion to place and remove CLD advertisements on its systems as long as it adheres to section 4 of this agreement.
b. Promotions and Programming.
i. Affiliate may choose to feature the CLD and its brands as a story on its systems with prior CLD approval.
ii. Affiliate may submit a program or promotion to be carried on CLD systems to promote interests. Such promotions will be accepted and executed with prior CLD approval. The CLD is open to the suggestion of any promotion and will execute such Affiliate promotions as it has resources to accomplish these efforts.
iii. CLD may submit a program or promotion for distribution on Affiliate platforms to promote interests. Such promotions will be accepted and executed with prior Affiliate’s approval. Affiliate will be open to the suggestion of any promotion and will execute such CLD promotions as it has resources to accomplish these efforts.
iv. Affiliate and CLD pledges to maintain lines of open communications by responding to all communications efforts and providing pertinent information necessary for the execution of the business of both the Affiliate and CLD.
v. Affiliate pledges to use CLD logos only on the websites listed on the application for Affiliation below and according to CLD/EnLive Branding guidelines. If Affliliate would like to add additional websites after initial affiliation, Affiliate must submit a link for an additional website by email to the CLD. Affiliate must receive written notice of approval from the CLD before displaying CLD logos on websites not included in the initial affiliation application.
a. Fees Payable by CLD to Affiliate.
i. Any License Fee payable by CLD to Affiliate shall be due thirty (30) days after the end of a Quarterly Reporting Period. Any fees due, undisputed, and not paid within such thirty (30) days, shall accumulate interest at the rate of 1.25% per quarter (5% per annum compounded).
ii. The Retail Rate / Affiliate Fee structure is contained in the table below.
iii. CLD will payout affiliate on a quarterly basis starting in April, then July, October and the January of the next fiscal year. Affiliate payout will be executed on this schedule despite the affiliate execution date of this agreement.
iv. The CLD will publish a monthly record of subscription levels on a CLD website accessible to all Affiliates.
v. During the Term, and for eighteen months thereafter, CLD shall maintain accurate and complete books and records, in accordance with generally accepted accounting principles and practices which contain information sufficient to verify the Affiliate Fees due hereunder. Upon not less than 15 days prior written notice, Affiliate shall have the right, during the Term, and for twelve months thereafter, to examine during normal business hours at a location within the 48 contiguous United States without unreasonably interfering with the operation of CLD’s business, the books and records of CLD which are related directly to the Video on Demand offering of EnLive to the extent necessary to verify the Affiliate Fees due; provided, however, that such examinations shall not be conducted more frequently than once per year and that such examinations shall be limited to Affiliate Fees payable during the Term (not to include any period in respect of which an examination has been concluded). If any such examination reveals a discrepancy in the amount paid to Affiliate, CLD shall pay CLD an amount equal to the amount of such discrepancy, plus interest on the amount of such discrepancy at the rate of [1.25]% per quarter, compounded annually (or, if lower, the maximum rate permitted by law) from the date on which such amount was paid by or should have been paid to Affiliate through the date on which payment is made to Affiliate. Affiliate will be deemed to have waived any and all claims, which it may have with respect to an underpayment of fees due unless it gives written notice of such claims to CLD within 30 days after the conclusion of such examination.
b. Taxes on Fees.
i. Affiliate acknowledges, represents and warrants that all Federal and State taxes due as a result from the income earned from affiliation with the CLD will be paid by Affiliate. Affiliate is fully responsible for all taxes related to the distribution on affiliate income from the CLD.
6. Representations and Warranties. Each party represents and warrants to the other that (i) it is duly organized, validly existing, and in good standing under the laws of the state in which it is incorporated / organized; (ii) it has the power and authority to enter into this Agreement and to perform fully its obligations hereunder; (iii) it is under no contractual or other legal obligation that shall in any way interfere with its full, prompt, and complete performance hereunder; (iv) the individual executing this Agreement on its behalf has the authority to do so; (v) the obligations created by this Agreement, insofar as they purport to be binding on it, constitute legal, valid, and binding obligations enforceable in accordance with their terms; and (vi) no consent or approval of any third party, governmental entity, or court is required for such party’s execution, delivery, or performance of this Agreement. Further, CLD represents and warrants to Affiliate that it owns or otherwise has the right to distribute the Programs via the EnLive Service.
7. Indemnification. Affiliate and CLD each agrees to hold the other party, its parent, subsidiary, and affiliated companies and entities, and their officers, directors, managers, employees and agents (collectively “Indemnitees”) harmless from and against any and all claims, suits, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of, or related to, any material breach of any of its respective representations, warranties, or obligations pursuant to this Agreement, so long as any such material breach does not arise directly from the other party’s Indemnitee’s gross negligence or willful misconduct. Furthermore, and without limiting the foregoing, CLD will indemnify, defend and hold harmless, Affiliate, its parent, subsidiary, and affiliated companies and entities, and their officers, directors, managers employees, and agents (“Indemnitees”) from and against any and all material claims, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of the content of the Programs, including but not limited to all advertising or promotional material included therein (if permitted hereby), unless such claims arise from insertions or deletions made by Affiliate to the Programs and so long as such claims or alleged claims do not arise directly from any Affiliate Indemnitee’s gross negligence or willful misconduct. The provisions of this paragraph shall survive the termination or expiration of this Agreement.
8. Press Release. Both parties may issue press release(s) regarding this Agreement and the business relationship of the parties as set forth herein with the advance written consent of the other party.
a. The terms and conditions of this Agreement and any other business information exchanged by the parties, including, but not limited to, financial information and any information related to customers, shall be kept confidential, except for (i) disclosure as may be required by law, regulation, court, or government agency of competent jurisdiction (in which event, if permitted by law, the disclosing party will so notify the other party as promptly as practicable and, if possible, prior to making any disclosure, will seek confidential treatment of such information and shall redact such information to the greatest extent possible); (ii) disclosure to each party’s respective officers, directors, employees, attorneys, and accountants, in their capacity as such; (iii) disclosure to enforce a party’s rights hereunder; (iv) in any litigation, arbitration, or other legal proceeding in which such party is involved (in which event, the disclosing party will so notify the other party as promptly as practicable and, if possible, prior to making any disclosure, will seek confidential treatment of such information and will redact such information to the greatest extent possible); and (v) disclosure to prospective purchasers of substantially all of the assets or business of such party, provided that such prospective purchaser will be subject to this Section 11. This confidentiality provision will survive the termination of this Agreement. Each of the parties acknowledges that the non-breaching party may be irreparably injured by a breach of this Section 11 by the breaching party, and that the non-breaching party, in addition to any other remedies available at law or in equity, will be entitled to seek equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this Section 11 by the other party.
b. Notwithstanding the foregoing, the following information will not be deemed to be confidential: information that is (i) generally known to the public without breach of this Agreement; (ii) independently known to or developed by the recipient prior to disclosure and without reference to, or use of, any other portion of the confidential information; or (iii) rightfully obtained by the recipient in good faith from a third party not under obligation of secrecy to the disclosing party.
a. Without the prior written consent of the other party, neither party may assign any or all of the rights and/or obligations under this Agreement, except that no consent shall be required for a party’s assignment to an entity that controls, is controlled by, or is under common control with, such party. This Agreement shall be binding upon the parties hereto and their respective successors and permitted assigns and shall inure to the benefit thereof.
b. The respective obligations of the parties as set forth in this Agreement are subject to, and will be performed in accordance with, all applicable federal, state, and local laws, rules, and regulations (including, without limitation, the Communications Act of 1934, as amended, the Cable Communications Policy Act of 1984, as amended, The Digital Millennium Copyright Act of 1988, as amended, and the rules and regulations of the Federal Communications Commission thereunder).
c. This Agreement constitutes the entire agreement between the parties with respect to the particular subject matter of this Agreement. The parties acknowledge that they may have entered into agreements with each other prior to the date of this Agreement and may enter into additional agreements with each other hereafter that are distinct and separate from this Agreement. Accordingly, the parties agree that, except as set forth herein or as otherwise agreed in writing hereafter, no right, obligation, restriction, or any other term or condition in this Agreement, on the one hand, and any other agreement between the parties hereto, on the other hand, shall have any bearing upon, be used in any way to interpret or clarify, or be deemed to supersede, amend, or modify in any way, the other or the meanings thereof. This Agreement may only be modified by a writing that is signed by all parties. Any waiver of any provision of this Agreement must be in writing and signed by the party whose rights are being waived. No waiver of any breach of any provision hereof will be or be deemed to be a waiver of any preceding or subsequent breach of the same or any other provision of this Agreement. The failure of a party to enforce or seek enforcement of the terms of this Agreement following any breach shall not be construed to be a waiver of such breach. Unless otherwise agreed in writing, all remedies, whether at law or in equity, will be cumulative.
d. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Colorado, without regard to its conflict of laws principals. Any dispute arising out of, or related to, this Agreement will be decided by the state or federal courts (as applicable) having jurisdiction over Arapahoe County, Colorado, and all parties specifically consent to the jurisdiction of such courts.
e. In the event that any provision of this Agreement is deemed by a court of competent jurisdiction to be invalid or unenforceable, this Agreement will remain effective and will be construed in accordance with its terms as if the invalid or unenforceable provision were not contained herein. In such event, the parties will thereafter work in good faith to modify the invalid or unenforceable provision in order to maintain the intent of the parties with respect to this Agreement. The titles and headings of this Agreement are for reference only and will not affect the interpretation of this Agreement. The parties acknowledge that this Agreement was fully negotiated and mutually drafted and, therefore, no provision of this Agreement will be interpreted against a party because such party drafted such provision.
f. Neither party will be, nor will hold itself out to be, the agent of the other party. This Agreement will not be construed to create a joint venture, partnership, principle-agent, employer-employee, or other like arrangement or relationship between the parties.
g. Neither party will have any rights against the other party for breach if such breach is due to severe weather, natural disaster, strike, equipment or utility failure, or other similar cause which is out of the reasonable control of the breaching party and which is commonly accepted to be an event of force majeure. Notwithstanding the foregoing, the breaching party must cure such breach as soon as practicable after the event.
This Agreement may be signed in any number of counterparts, each of which will be an original, and all of which together will constitute one and the same instrument.
In Witness Whereof, the parties hereto have duly executed and delivered this Agreement as of the date first set forth above. This agreement is executed by the submission of Affiliate’s information in the form above.