Microsoft word - affiliation agreement _6.02.11_.doc

2011-2012 WESTWOOD ONE
NFL FOOTBALL AFFILIATION AGREEMENT

I. BROADCASTING
A. Except as otherwise provided herein, BROADCASTER (see Exhibit A) shall broadcast the Programs (as defined below) in their committed entirety on “STATION” (see Exhibit A) without deletions or alterations, including commercials furnished by Westwood One Radio Networks, Inc. (“NETWORK”) (the “NETWORK Commercials”), precisely as furnished and instructed by NETWORK. In the event BROADCASTER fails to broadcast any scheduled Programs or NETWORK Commercials during the Terms(s), BROADCASTER recognizes that such failure will cause NETWORK financial damage the precise amount of which may be impossible to determine. Liquidated damages for such failure to broadcast that the BROADCASTER will pay to NETWORK is an amount equal to $1,000 for each Program and $100 for each Commercial which BROADCASTER is obliged to broadcast but does not broadcast. Payments by BROADCASTER pursuant to this sub- paragraph shall be without prejudice to any and all other right NETWORK may have against BROADCASTER under this AGREEMENT as the result of its failure to broadcast a Program and/or Commercial. B. Neither party will have any liability hereunder if performance by such party shall be prevented, interfered with or omitted because of labor dispute, including without limitation a labor dispute between the National Football League (“NFL”) and the NFL players that causes either a strike or a lockout (a “NFL Work Stoppage”), failure of facilities, act of God, government or court action, or any other similar or dissimilar cause beyond the control of the party so failing to perform hereunder. Any such NFL Work Stoppage shall have no effect on BROADCASTER’S obligation to broadcast no less than ten (10) NCAA Football games as set forth on the attached Exhibit A-4 (the Clearance Intention Form with respect to the 2011-2012 Westwood One Major College Football Schedule). C. During the Term(s) of this AGREEMENT and at the precise times designated by NETWORK, BROADCASTER will furnish to NETWORK specific, complete, accurate and fully-executed Affidavits on forms provided by NETWORK setting forth proof of broadcast of all Programs and NETWORK Commercials included thereon. BROADCASTER understands and agrees that all affidavits for Programs and/or Commercial inventory clearance must be submitted to NETWORK via the Internet on
forms as provided therein and/or in accordance with any substitute system provided by NETWORK. Said affidavits must be
submitted to NETWORK within fourteen (14) days after each standard broadcast week. D. BROADCASTER is solely responsible for payment of any public performance music license fees or royalties and will maintain for STATION such licenses, including, but not limited to ASCAP, BMI or SESAC licenses, as are necessary for the broadcast E. BROADCASTER will not accept, broadcast or distribute any advertising for a product or service relating in any way to gambling or sports betting or lotteries in connection with the Programs and will not broadcast or distribute in any medium whatsoever (including, without limitation, print advertisements, printed schedules, Internet site mentions, or similar materials) any promotional announcement or informational material for or related to the NFL, the games, or any NFL member club that includes any reference to or mention of gambling or sports betting or lotteries. The subject matter included within the terms “gambling” and “sports betting or lotteries” as used herein shall include, without limitation, sports books, tout services, line services or other types of “sports information service” whose activities are significantly geared to sports betting; casinos; hotels that include gambling establishments; riverboat gambling establishment; Indian gaming establishments authorized under federal law; and other facilities that house or operate any commercial gambling establishment. The foregoing shall not preclude BROADCASTER from accepting advertising concerning local, state, or national referenda or legislation concerning gambling, general advertising from a state, municipal or provincial lottery, if the lottery organization does not offer any betting scheme that is based on real sporting events or performances in them, or general advertising from horse or dog racing tracks, or from state or municipal off-track betting organizations, if they offer no betting schemes based on real sporting events (other than horse or dog races) or performances in them. In addition, BROADCASTER will not sell any advertising or sponsorships to any entity doing business, directly or indirectly, in any category listed on Schedule A attached hereto and made a part hereof, or in any additional category which NETWORK notifies BROADCASTER has been added to such list of prohibited categories. Schedule A may be modified at any time by NETWORK upon reasonable notice to BROADCASTER. Affiliate Initial _________
Westwood One Initial ________
F. STATION is required to run 100% of the Programs unless STATION is pre-approved to preempt broadcasts for local play-by- play sporting events. In that event, STATION is required to place those games on a similar or higher rated STATION in the marketplace. NETWORK will be the STATION’s exclusive provider of national play-by-play NFL broadcasts. G. For purposes of this AGREEMENT, the “Programs” are all NFL games as supplied by NETWORK and set forth in the attached Clearance Intention Forms and WW1 NFL Rider, which are incorporated herein as Exhibit A and made a part hereof. H. Notwithstanding anything contained herein to the contrary, in the event that all or a portion of the 2011-12 NFL Football Season is cancelled due to a NFL Work Stoppage, such NFL Work Stoppage shall have no effect on BROADCASTER’S obligation to broadcast no less than ten (10) NCAA Football games as set forth on the attached Clearance Intention Form with respect to the 2011-2012 Westwood One Major College Football Schedule.
II. TERM, TERMINATION
A. The Term(s) of the AGREEMENT will commence on 8/01/11 and will continue until 7/31/12 (the “Term”), or as may
otherwise be agreed to by the parties in writing. 1. NETWORK will have the right to terminate this AGREEMENT effective at any time by giving BROADCASTER not less than thirty (30) days prior written notice of termination. 2. NETWORK may immediately terminate this AGREEMENT by giving BROADCASTER notice of termination if BROADCASTER and/or its agents violate any provision of this AGREEMENT and fail to cure such violation within ten (10) days after NETWORK gives BROADCASTER notice of such violation. C. Notwithstanding the foregoing, NETWORK will have the right to terminate this AGREEMENT effective immediately by giving BROADCASTER notice of termination if any one of the following occurs: 1. BROADCASTER violates any material provision of this AGREEMENT and said violation, by its nature, cannot be 2. BROADCASTER fails to carry at least 80% of the Programs and/or NETWORK Commercials scheduled during any 3. STATION’s City of License (see Exhibit A) is changed; 4. BROADCASTER has filed false, inaccurate or incomplete information concerning the broadcast of Program or 5. NETWORK no longer distributes the Program. D. Termination of this AGREEMENT by NETWORK by reason of any violation by BROADCASTER is without prejudice to any and all other rights and remedies to which NETWORK may be entitled.
III. LICENSE
In furtherance of BROADCASTER’S obligations described in Section I hereof, subject to the terms and conditions hereof, during the Term and solely in the City of License indicated on Exhibit A, NETWORK hereby grants to BROADCASTER, and BROADCASTER hereby accepts, a non-exclusive, non-transferable right and license to broadcast, via free, over-the-air terrestrial AM/FM radio only, the Programs, provided however that in no event shall BROADCASTER broadcast a Program via free, over-the-air terrestrial AM/FM radio within the 100-mile radius surrounding the home city of each club participating in the game featured in such Program, without the express written permission of NETWORK (the “License”). BROADCASTER may not grant sublicenses of any kind under the License. BROADCASTER shall not use any trademarks, logos or service marks of the NFL without the express permission of the NFL. For the avoidance of doubt, no right to use any trademark, logo or service mark of the NFL is licensed hereunder.
IV. PROGRAM OWNERSHIP AND RE-BROADCAST RIGHTS
Subject to the terms of this AGREEMENT, BROADCASTER acknowledges that all rights and interest in and to the Program and NETWORK Commercials shall remain the exclusive property of NETWORK. BROADCASTER shall not, expect as provided herein, without written authorization from NETWORK, copy, duplicate, rebroadcast or reproduce any Program or NETWORK Commercials furnished hereunder. Use of the Program by BROADCASTER is for free, over-the-air, terrestrial AM/FM
radio broadcast on STATION only and BROADCASTER acknowledges that it has no right to broadcast or otherwise transmit
the Program, or any part thereof, by any other means. BROADCASTER agrees that any unauthorized use or transmission,
including but not limited to transmission through the Internet, either simultaneous or delayed, will be deemed a material breach of
Affiliate Initial _________
Westwood One Initial ________
this AGREEMENT and an infringement on NETWORKS’ proprietary rights in the Program. In the event of an unauthorized transmission or broadcast, NETWORK and the NFL shall be entitled to all remedies, legal and/or equitable, against BROADCASTER. BROADCASTER will not authorize, cause, permit or enable anything to be done whereby any Program or segment thereof may be recorded, duplicated, sold, transferred, rebroadcast or otherwise transmitted or used for any purpose other than broadcasting by STATION as specifically provided in this AGREEMENT. V. MISCELLANEOUS
A. All claims, disputes and controversies of every kind and nature arising out of or in connection with this AGREEMENT shall be determine by arbitration in New York, New York, in accordance with the Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services (JAMS). This AGREEMENT shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of law principles. Any notice given in connection with this AGREEMENT shall be given via overnight mail, or via certified and/or first class mail, to the addresses set forth on the B. Notwithstanding anything contained herein to the contrary, this AGREEMENT does not create a partnership, joint venture or relationship of trust or agency between NETWORK and BROADCASTER. BROADCASTER may not assign, transfer or delegate, in whole or in part, any of the rights, interests, or obligations created by this AGREEMENT without NETWORK’S prior written consent. Except as expressly provided herein, no third party is intended, or will be deemed, to be a beneficiary of any provision of this AGREEMENT. If any provision (or portion thereof) of this AGREEMENT shall be invalid or unenforceable under any applicable law, such invalidity shall not affect the enforceability of any other provision hereof and it is the parties’ intention that such provision (or portion thereof) shall be construed in a manner designed to effectuate the purposes of such provision to the maximum extent enforceable under such applicable law. A party’s failure to enforce any provision, right or remedy under this AGREEMENT shall not constitute a waiver of such provision, right or remedy. This AGREEMENT may be executed in counterparts, including via facsimile or PDF copy, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, and this AGREEMENT shall be of no force and effect until it has been executed by BROADCASTER AND NETWORK. C. This AGREEMENT contains the entire understanding between NETWORK and BROADCASTER with respect to its subject matter, supersedes all previous agreements or understandings between them with respect thereto, and shall not be modified except by a writing signed by both parties. D. The attached Schedule and Exhibit A (including the NFL Rider and each Clearance Intention Form) are incorporated herein by reference and made part of the terms and conditions of this AGREEMENT. The Programs and the material contained within such Programs are subject to changes, additions and deletions, including without limitation the anticipated hosts of the Programs, at the discretion of NETWORK and any such modification instituted by NETWORK shall not affect the binding nature of this AGREEMENT. In addition, BROADCASTER’S rights hereunder and use and broadcast of the Programs shall be subject to any additional or changed rules, regulations or requirements instituted by the NFL and applicable to the Programs, the broadcast thereof, any advertising incorporated therein, or any related subject matter. With the intent to be legally bound, the parties hereto, each acting under due and proper authority, agree to the terms and conditions of this AGREEMENT, as evidenced by their signatures below.
BROADCASTER:
WESTWOOD
NETWORKS,

By: _________________________________
By: _________________________________

Name: ______________________________

Title: _______________________________

DATE: ______________________________
DATE: ______________________________
Affiliate Initial _________
Westwood One Initial ________
SCHEDULE A
PROHIBITED ADVERTISING CATEGORIES
(Note that examples listed within specific categories are provided for illustrative purposes only.) 1. Contraceptives (e.g., condoms), except to the extent otherwise expressly permitted under the pharmaceutical category. 2. Dietary and/or nutritional supplements and products (including energy drinks) that contain ingredients other than vitamins and minerals for which the FDA has established recommended daily intakes, or any substance prohibited pursuant to League policies. Health and nutrition stores are permitted, provided that they do not reference any dietary or nutritional supplements or products, or any prohibited substances. 3. Distilled spirits and flavored malt beverages (e.g., Smirnoff Ice, Bacardi Silver); however, traditional malt beverages (e.g., beer) and non-alcoholic malt beverages and wine are permitted, subject to specific League guidelines. 4. Establishments that feature nude or semi-nude performers. 5. Firearms, ammunition or other weapons; however, stores that sell firearms and ammunitions (e.g., outdoor stores and camping stores) will be permitted, provided they sell other products and the ads do not mention firearms, ammunition or other weapons. 6. Fireworks. 7. Gambling-related advertising, including, without limitation, advertising for any hotel, casino or other establishment that houses gambling regardless of whether the advertising references gambling, as well as any advertising that would violate the terms of the League’s television agreements or policy on gambling advertising, except: a. general advertising from a state or municipal lottery, provided that such lottery organization does not offer any betting scheme that is based on real sporting events or performances in them; or b. general advertising from horse- or dog-racing tracks, or from state or municipal off-track betting organizations, provided that such horseracing, dog-racing or off-track betting establishment offers neither (i) betting schemes based on real sporting events (other than horse or dog races) or performances in them or (ii) casino games of any kind; or c. general advertising for tourist destinations, including Las Vegas, subject to the following: NETWORK APPROVAL: All such ads must be approved in advance by NETWORK. ADVERTISING ONLY: Only general advertising will be permitted (e.g., advertising units). Sponsorships, including, but not limited to, program segment sponsorships and other types of branded programming enhancements are prohibited. (For example, vegas.com ads in commercial breaks will be acceptable but a pre-game sponsorship or sponsored feature in NFL programming will not be permitted). TOURISM DESTINATIONS ONLY: Only tourism destinations (e.g., Nevada, Las Vegas, Lake Tahoe) are permitted, subject to the terms hereof. The prohibition of ads for hotels, casinos and other institutions that house gambling will remain in place regardless of whether or not such ads explicitly reference gambling. CONTENT: Ads may not contain any gambling references - audio or visual - or any other gambling imagery. (For clarity, ads for Las Vegas tourism may not contain images of slot machines, dice, cards, or a wide shot of Vegas strip and casinos but may contain images of golf, swimming pools, and performers). The content of the ads (audio and/or visual) must be “family friendly”. Any suggestive ads or those showing or suggesting inappropriate activity (e.g., excessive use of alcohol, sexual adventures), or those that imply general misbehavior (e.g., “What happens in Vegas Stays in Vegas”) will not be approved. ANCILLARY MENTIONS: Airline and other travel-related ads may now mention Las Vegas in an ancillary manner (e.g., “Fly Southwest Airlines from Los Angeles to Las Vegas for $59”). 8. Illegal products or services. 9. Movies, video games and other media that contain or promote objectionable material or subject matter (e.g., overtly sexual or excessively violent 10. Restorative or enhancement products (e.g., “male enhancement” products), except to the extent otherwise expressly permitted under the 11. Sexual materials or services (e.g., pornography or escort services). 12. Social cause/issue advocacy advertising, unless otherwise approved in advance by NETWORK. If approved, only general advertising will be permitted (e.g., advertising units). Sponsorships, including, but not limited to, program segment sponsorships and other types of branded programming enhancements are prohibited. 13. Tobacco products (e.g., cigarettes, cigars, pipe tobacco, chewing tobacco and snuff). 14. Advertisements for pharmaceutical products (both prescription and over-the-counter (non-prescription)) are permitted only under the following terms and conditions: (a) Only general advertising will be permitted (e.g., advertising units). (b) Sponsorships, including, but not limited to, program segment sponsorships and other types of branded programming enhancements are prohibited; provided that in limited circumstances sponsorships by over-the-counter pharmaceutical products may be permitted with the prior (c) Categories of permitted/prohibited pharmaceutical products (both prescription and over-the-counter) may be modified by League at any time. (d) Advertising for over-the counter pharmaceuticals is generally permissible (provided they do not otherwise fall in a category listed above) (e) Advertising for prescription medications is permitted currently in only the following categories: Analgesics (Non-Opioid Only ) (e.g., Celebrex, Mobic); Antibacterials (e.g., Zithromax, Levaquin); Antidementia / Alzheimer’s Agents (e.g., Aricept); Antidepressants / Anxiolytics (e.g., Lexapro, Zoloft); Antifungals (e.g., Diflucan); Antigout Agents (e.g., Zyloprim); Anti-Insomnia Agents (e.g., Lunesta, Ambien); Anti-Inflammatory Agents (Non-Steroidal Only) (e.g., Celebrex, Mobic); Anti-Migraine Agents (e.g., Topamax); Antiparasitics (e.g., Malarone, Stromectol); Anti-Parkinson / Movement Disorder Agents (e.g., Requip, Mirapex); Antispasticity Agents (e.g., Zanaflex); Antivirals (e.g., Kaletra, Zovirax); Blood Glucose Regulators / Diabetes Medications (e.g., Januvia); Cardiovascular Agents (including Cholesterol Reducing) (e.g., Lipitor, Norvasc); Dental and Oral Agents (e.g., Aphthasol); Dermatological Agents (e.g., Taclonex); Gastrointestinal Agents (including Inflammatory Bowel Disease Agents) (e.g., Nexium, Asacol); Genitourinary Agents (including Erectile Dysfunction and Prostate Medications) (e.g., Flomax, Viagra, Hytrin); Hair Renewal and Growth (e.g., Propecia); Immune Suppressants / Immunomodulators (e.g., Betaseron, Orencia); Metabolic Bone Disease Agents (including Anti-Osteoporosis Agents) (e.g., Boniva); Ophthalmic Agents (e.g., Restasis); Oral Contraceptives (e.g., Loestrin 24); Otic Agents (e.g., Auralgan); Respiratory Tract Agents (Allergy and Asthma Medications) (e.g., Flonase, Zyrtec, Pulmicort); Smoking Cessation Products (e.g., Chantix); and Vaccines (e.g., Gardasil, Fluvirin). Affiliate Initial _________
Westwood One Initial ________
EXHIBIT A
ADDITIONAL REQUIREMENTS AND CLEARANCE INTENTION FORMS

This Exhibit A incorporates each of the following documents, which are attached hereto and made a part hereof:

Please Complete the Following:
Station Call Letters: _____________________________ Frequency: ____________________________________ Station Owner: _________________________________ City of License: _________________________________ Station Representative: __________________________ Title: __________________________________________ Address: ______________________________________ City: ___________________ State: _____ Zip: _______ Phone: _________________ Fax: _________________ Email: _________________________________________ Affiliate Initial _________
Westwood One Initial ________

Source: http://www.shows.westwoodone.com/nfl/techform/2011-12nfl-affiliationagreement.pdf