{"id":42722,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/purchase-of-nbc-tv-advertising-inventory-national-broadcasting.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"purchase-of-nbc-tv-advertising-inventory-national-broadcasting","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/purchase-of-nbc-tv-advertising-inventory-national-broadcasting.html","title":{"rendered":"Purchase of NBC TV Advertising Inventory &#8211; National Broadcasting Company Inc. and Net2Phone Inc."},"content":{"rendered":"<pre>\n****CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH\nTHE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL \nTREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED\n\n                           [LOGO FOR NBC TV NETWORK]\n\nJune 25, 1999\n\nMr. Cliff Sobel\nNet2Phone, Inc.\n171 Main Street\nHackensack, NJ 07601\n\n                   Purchase of NBC TV Advertising Inventory\n                   ----------------------------------------\n\nDear Cliff:\n\nThis letter sets forth the agreement between National Broadcasting Company, Inc.\n(\"NBC\"), and Net2Phone, Inc. (\"Advertiser\") with respect to Advertiser's\npurchase of certain NBC Television Network (\"NBC TV\") advertising inventory. The\nterms and conditions shall be as follows:\n\n1. Spots. NBC shall provide Advertiser with the use of thirty (30) second \nadvertising spots or such other lengths or formats of advertising as NBC and \nAdvertiser may mutually agree (collectively, the \"Spots\") to be telecast on NBC \nTV prior to June 30, 2000 on the Dates, Days and Times reasonably determined by \nNBC in accordance with schedules and strategies reasonably requested by \nAdvertiser following consultations with NBC. NBC agrees to telecast Spots with a\nTotal Spot Value (as defined below) of $1,500,000. All such Spots run by \nAdvertiser shall be subject to NBC TV's standard terms and conditions for such \nadvertising which are described in the \"Participating Sponsorship Agreement\" \nattached hereto as Exhibit A (the \"Standard Terms\") and which are made a part \nof this Letter Agreement in their entirety; provided, however, that in the case \nof a conflict between the terms of this Letter Agreement and the terms of the \nStandard Terms, the terms of this Letter Agreement shall govern. For purposes of\nthe Standard Terms, Advertiser shall be both the \"Advertiser\" and the \"Agency\" \nas such terms are used therein.\n\n2. Value of Spots. The value of each of Advertiser's Spots telecast by NBC TV \npursuant to the terms hereof shall be $1,500,000 (the \"Total Spot Value\"),\ncalculated, for each Spot, at ****% of the scatter market rate for the Date, Day\nand Time in which the Spot will be telecast and as charged by NBC at the time\nwhen such Spot is scheduled. Advertiser shall pay the Total Spot Value to NBC in\ncash immediately following the consummation of Advertiser's initial public\noffering. Advertiser agrees that NBC makes no guarantee regarding what the\nactual rating for any particular Program will be and, therefore, will not be\nobligated to provide any make-goods hereunder. The parties agree that no agency\nfees or other expenses may be deducted by Advertiser in any way from payment of\nthe Total Spot Value to NBC.\n\n3. Representations and Warranties. NBC and Advertiser each represent and warrant\nthat this Letter Agreement has been duly authorized, executed and delivered by \nsuch party and that this Letter Agreement constitutes the legal, valid and \nbinding obligations of such party, enforceable against it in accordance with its\nterms.\n\n[****] REPRESENTS MATERIAL, WHICH HAS BEEN REDACTED AND FILED SEPARATELY WITH \nTHE COMMISSION, PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO \nRULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.\n\n\n\n\n                                 CONFIDENTIAL\n\n \n4.   Confidentiality. Neither party shall issue a press release or make any \nstatement to the general public concerning this Letter Agreement, the Spots, or \nthe existence thereof, without the express prior written consent of the other; \nprovided, however, that NBC agrees that Advertiser may file this Letter \nAgreement with the Securities and Exchange Commission (the \"SEC\") and describe \nthe terms of this transaction in any filing with the SEC if so required by the \nSecurities Act of 1933 and Securities Exchange Act of 1934, in each case, as \namended, the rules and regulations related thereto or any applicable state laws \n(the \"Securities Laws\") as long as Advertiser agrees to use its reasonable \nefforts to obtain confidential treatment of the economic and other material \nterms hereof under the Securities Laws and to consult with NBC during the \nprocess.\n\n5.   Miscellaneous. This Letter Agreement and the exhibits and schedules \nattached hereto constitute the entire agreement and understanding of the parties\nrelating to the subject matter hereof and supersedes all prior and\ncontemporaneous agreements, negotiations, and understandings between the\nparties, both oral and written. No waiver or modification of any provision of\nthis Letter Agreement shall be effective unless in writing and signed by both\nparties. Any waiver by either party of any provision of this Letter Agreement\nshall not be construed as a waiver of any other provision of this Letter\nAgreement, nor shall such waiver operate as or be construed as a waiver of such\nprovision respecting any future event or circumstance. The terms of this Letter\nAgreement shall apply to parties hereto and any of their successors or assigns.\nThis Letter Agreement may be executed in counterparts, each of which when\nexecuted shall be deemed to be an original but all of which taken together shall\nconstitute one and the same agreement.\n\n6.   Governing Law and Jurisdiction. This Letter Agreement shall be governed by \nand construed under the laws of the State of New York applicable to contracts \nfully performed in New York, without regard to New York conflicts law. The \nparties hereto irrevocably consent to and submit to the exclusive jurisdiction \nof the federal and state courts located in the County of New York. The parties \nhereto irrevocably waive any and all rights to trial by jury in any proceeding \narising out of or relating to this Agreement.\n\n7.   Liability for Failure to Broadcast Spots. In the event that NBC does not \ntelecast Spots equal to the Total Spot Value pursuant to the terms and \nconditions of this Agreement, then as liquidated damages and not a penalty, NBC \nshall promptly pay Advertiser in cash an amount equal to the difference between \nthe Total Spot Value and the value of the Spots actually telecast, as calculated\nin accordance with Section 2 above. Except for damages arising out of the gross \nnegligence of willful misconduct of either party hereto, no party shall  be \nliable to the other party or its affiliates, officers, directors, successors or \nassigns for any incidental, consequential, special or punitive damages or lost \nprofits arising out of this Letter Agreement, whether liability is asserted in \ncontract or tort and irrespective of whether it has advised or been advised of \nthe possibility of any such loss or damage.\n\n\n\n                                 CONFIDENTIAL\n\n \n                                       3\n\n\n     If you are in agreement with the above terms and conditions, please \nindicate your acceptance by signing in the space provided below, and return one \noriginal to me.\n\n                                              Very truly yours,\n\n                                              NATIONAL BROADCASTING\n                                              COMPANY, INC.\n\n\n                                              By: \/s\/ [ILLEGIBLE]\n                                                  -----------------------------\n                                              Name:\n                                              Title:\n\n\nACCEPTED AND AGREED:\n\nNET2PHONE, INC.\n\n\n\nBy: \/s\/ Clifford M. Sobel\n   ------------------------------\nName:  Clifford M. Sobel\nTitle: President\n\n\n                                 CONFIDENTIAL\n\n \n                                   Exhibit A\n                                   ---------\n\n                      Participating Sponsorship Agreement\n                      -----------------------------------\n\n\n                                 CONFIDENTIAL\n\n \nParticipating Sponsorship Agreement - [NBC TELEVISION NETWORK LOGO HERE]\nPart II\n\n\n1. DEFINITIONS \n\n\"Advertiser\" means advertiser named in Part I.\n\n\"Agency\" means the advertising agency named in Part I (see also paragraph 23).\n\n\"NBC\" means NBC Television Network, a Division of National Broadcasting Company,\nInc.\n\n\"paragraph\" - all references to 'paragraphs' by numbers apply to this Part II.\n\n\"participation\" means a sponsorship unit which entitles Advertiser to 30 seconds\nof commercial time unless otherwise specified in Part I hereof.\n\n\"Program\" means the program(s) and\/or event(s) described in Part I intended for\ntelecast in which Advertiser is a sponsor.\n\n\"Section\" references to 'Sections' by numbers apply to Part I of which this Part\nII is a part (by attachment or by reference) and without which this Part II\nshall be invalid.\n\n\"telecast\" means the presentation and transmission of any of the programs\ndescribed in Part I on one occasion to any or all stations.\n\nThe four digit numerals within parentheses at the conclusion of certain\nparagraphs are internal NBC printing codes and are not a part of this agreement.\n\nCertain paragraphs are intentionally omitted for reasons of inapplicability.\n\n2. STATIONS\n\n   a. Stations Ordered. Stations ordered for Advertiser for the Program(s) shall\nbe the interconnected affiliated stations identified in the NBC TV Station List \nand such other stations as NBC may elect to include in the Program's station \nlineup, including delays, if any. NBC shall endeavor to make available as many \nstations as possible. The status of availability of all ordered stations, \nwhether available or not, shall be included in the NBC TV Station List which \nshall be furnished to Agency upon request.\n\n   b. Station Lineup. Station lineup as used herein shall compromise all \nstations which are available or may become available for the Program(s) on a \nbasis which is live or tape delayed.\n\n   c. Addition of Ordered Stations. Stations which are initially reported \nunavailable but which become available for the telecast(s) on either a live or \ntape delayed basis shall become part of Advertiser's station lineup effective \nimmediately.                                                             \n\n4. PACKAGE PRICE\n\n   The package price(s) indicated in Part I include all charges except the \napplicable Integrated Networking Charge and other charges for special commercial\nrequirements.                                                           \n\n5. INTEGRATED NETWORKING CHARGE\n\n   The Integrated Networking Charge listed in the current NBC Television Network\nCommercial Integration Manual shall be applicable to each commercial insertion \nup to and including 60 seconds in length. Announcements in excess of 60 seconds \nwill be billed at a proportionately higher charge. This production facilities \ncharge includes the services, as required, for program origination, videotaped \nrepeat network telecast(s), and satellite transmissions. Also included are the \nnormal insertions of tape commercials when originated from network control \npoints in New York and\/or Burbank and the normal insertions of commercials into \ndelayed broadcasting tapes. Additional production charges may be made for\nspecial commercial requirements in accordance with the NBC O&amp;TS Rate Card. With\nrespect to late delivery of commercial material, charges and other conditions\nwill be in accordance with the NBC Television Network Commercial Integration\nManual.                                                                  \n\n6. PROGRAM\n\n   a. Supplier. The Program(s) set forth in Part I will be supplied by NBC and \nNBC will furnish for such Program(s) all the necessary creative elements, \nproduction facilities and services therefor and personnel and talent required \nfor the appropriate television presentation of the Program(s). Each program will\nconform to NBC's programming and operating policies and technical standards.\n\n  \n\n\n                                 CONFIDENTIAL\n\n \n    d. Production Facilities and Services. Production facilities and services \ncharges applicable to the Program(s) are included in the package price. Agency \nwill furnish all elements for and will bear all costs of the commercials. To the\nextent feasible, NBC will provide, if requested, production facilities and\/or \npersonnel for the production and presentation of commercials. Rates therefor \nwill be charged to Agency in accordance with the O&amp;TS Rate Card (or at rates \nquoted upon request where such Rate Card rates do not apply).            \n\n    Agency must deliver commercial material to NBC no later than 14 days prior \nto the scheduled telecast and NBC shall insert such material into the program(s)\nto be telecast.                                                          \n\n7. AGENCY-FURNISHED MATERIAL\n\n   a. Furnishing and Submission. All commercial announcements and talents and \nmaterial therefor and billboards where applicable (except as may be furnished by\nNBC) and any other material furnished by Agency for the telecasts are \nhereinafter collectively and individually referred to as Agency material. Agency\nmaterial must be furnished to NBC at least 14 days in advance of air date. \nAgency warrants that it has obtained all necessary rights for the performance\nand use of said agency material, including music performance.                \n\n   b. Compliance With Standards. Agency material must conform to the programming\nand operating policies of NBC, and the quality of recorded Agency material must\ncomply with NBC's technical standards, and shall not contain copy or material\nwhich conflicts with product protection rights granted to others by NBC. NBC has\nthe continuing right to require Agency and Advertiser to edit and modify any and\nall Agency material to the extent NBC deems necessary to conform to the public\ninterest and to the programming and operating policies of NBC. NBC reserves the\nright to refuse to accept for telecasting or to refuse to telecast any Agency\nmaterial which does not in its judgement conform to the public interest or to\nsuch policies and standards, or which in the reasonable opinion of NBC may\nviolate the rights of others.\n\n   c. Substitution by Agency. In the event of NBC's refusal to accept any\nAgency material, Agency will substitute other material therefor acceptable to\nNBC. The acceptance or rejection by NBC of any substitutes hereunder shall be\nmade by NBC in accordance with the requirements of paragraph 7b.\n\n   d. NBC Rights on Agency's Failure to Furnish. In the event Agency fails to \nfurnish any Agency material as being provided, or in the event NBC disapproves \nany Agency material and Agency fails to furnish substitutes therefor \nsatisfactory to NBC, NBC may, at its option, schedule promotional or public \nservice type announcements in place of Agency's regularly scheduled commercial \nmaterial without identification of Advertiser except as required by law or \nadministrative regulation. No such action on the part of NBC under this \nparagraph shall relieve Agency of its obligation to make payments for all \ncharges as provided for hereunder.                                       \n\n9. INCREASES AND PROTECTION\n\n   NBC reserves the right to change production facilities and services charges, \nincluding the Integrated Networking Charge, effective on such date as announced \nby NBC to the trade. Any such change which results in an increase to Advertiser \nwill not apply until three months after the date upon which such change is \nannounced by NBC.                                                        \n\n10. ADVERTISING AGENCY COMMISSION\n\n   The package price(s) set forth in Part I and the Integrated Networking Charge\ninclude an advertising agency commission of 15%.                         \n\n11. BILLING AND PAYMENT\n\n   All charges hereunder will be billed to Agency on the second business day \nfollowing the month of telecast(s) and shall be paid on or before the 15th day\nof the billing month (or such earlier date as set forth by any special payment\nterms or as designated in Part I), it being agreed that time of payment is of\nthe essence. Notwithstanding disagreement between the parties as to particular\nitems of charge or credit as of the due date, all charges not specifically and\nreasonably questioned by Agency shall be paid by such date. NBC's obligations\nunder this agreement are also conditioned upon full payment by Agency of all\nobligations to NBC under preceding or concurrent agreements with NBC for the\nsame advertiser.\n\n12. DAY AND TIME PERIOD OF SPONSORSHIP\n\n   Part I reflects the day, starting time, program length and program to be \nsponsored on a participating basis by Advertiser on the dates shown, expressed\nin New York City Time (NYCT). Time for the purpose of this paragraph is\napproximate. NBC reserves the right to advance or delay the starting time shown\nand the further right to expand or contract the program length indicated.\n\n   The program(s) hereunder are distributed across the country in various \nconfigurations which utilize live and tape delay transmissions to stations. \nSpecific information with respect to such transmissions is available on request.\n\n\n\n                                 CONFIDENTIAL\n\n \n14.  COMMERCIAL ENTITLEMENT\n\n      Each date listed in Part 1 represents a 30-second participation for\ncommercial utilization in the program indicated, unless otherwise specified.\n                                                                         \n15.  COMMERCIAL POSITIONS\n\n      The placement and designation of commercial positions shall be determined\nby NBC. NBC reserves the right to revise any or all elements of the commercial\nformat in each of the programs hereunder to include changing of commercial\nplacement within programs. In certain program series, NBC retains the right to\nmove within the same program a participation(s) from one day of the week to\nanother day of the same week. NBC reserves the further rights to format the\nprograms so as to accommodate any combination of commercial elements and to\nexpand or contract any or all elements of the commercial format at any time to\nmeet the competitive forces of the industry.\n\n16.  CAST COMMERCIALS\n\n      Cast Commercials, including placement thereof, are subject to the review \nand approval of NBC Advertising Standards and Sales Services.\n                                                                          \n17.  PRODUCTS TO BE ADVERTISED\n\n      a. Protected Products. NBC will endeavor to avoid scheduling products\ncompetitive or antithetical to single-product commercials of at least 30 seconds\nduration within the commercial interruption (i.e. pod) in which such commercial\nis scheduled. Such competitive or antithetical avoidance is known as product\nprotection. Product protection throughout this paragraph 17 applies only to\nother network advertisers obtained by the NBC Television Network.\n\n      Product protection will not be granted to commercials which are multi-\nproduct 30-second commercials nor to any commercial of less than 30 seconds in\nlength.\n\n      Changes in designation of protected products may be made only upon receipt\nof NBC's approval. Requests for such changes in designation must be submitted to\nthe NBC Television Network Sales Department not less than 14 days prior to the \ndesired date of such change(s).\n\n      b. Exclusive Basis Products. In certain programs, some products may be \nestablished as exclusive basis products which entitle such products to broader \nproduct protection than that which is indicated in subparagraph \"a\" above. The \nproducts (if any) granted such exclusivity and the extent of the product \nprotection granted thereby is specified in Part 1.\n\n      c. Non-Exclusive Basis Products. Advertiser's products other than\nprotected products may be advertised hereunder on a non-exclusive basis\nproviding NBC's approval has been obtained in advance in writing. The\nadvertising of non-exclusive basis products is subject to discontinuance on 24\nhours notice in the event the advertising of such non-exclusive basis products\nconflicts with product commitments made by NBC to others.\n\n      d. Other Products. Products other than protected and NBC approved \nnon-exclusive basis products may not be advertised on any program hereunder. \nCommercials for such other products may be removed or deleted by NBC without \nprior notice and Advertiser will not be relieved of its obligation for any of \nthe charges hereunder by reason of such removal or deletion.\n\n      e. Nature of Approvals. Approvals referred to above in this paragraph 17 \nmust be obtained in writing from NBC. Approval of products or commercial \nmaterial for compliance with NBC's Advertising Standards, while ultimately \nrequired under paragraph 7, does not constitute NBC's approval under this \nparagraph 17.\n\n18.  BILLBOARDS\n\n      Certain programs provide billboards. The billboard is a brief announcement\nidentifying the sponsor or partial sponsor of a program. It is not intended for\nuse as a commercial announcement. If so indicated in Part 1, Advertiser shall \nbe allowed a billboard of the type and duration specified therein. Such \nbillboard will consist of visual and\/or audio material acceptable to NBC. \nPlacement of billboards shall be designated by NBC and may be scheduled adjacent\nto billboards and\/or commercials of other sponsors in the program.\n\n19.  LEAD-INS\n\n      Lead-in copy of a transitional nature may be used in certain types of \nprograms. Such copy must be limited to five seconds in length and must be devoid\nof commercial sell and comparative references. The program host or other \nindividual designated by NBC shall be made available for lead-ins. In no event \nmay lead-ins be used separately from the commercial it was intended to be lead \ninto, nor combined to form a longer lead-in.\n\n20.  AGENCY TERMINATION RIGHTS\n\n      If so provided in Part 1, Agency shall have the right to terminate a \nportion of Advertiser's sponsorship, effective with the termination dates shown \nin Part 1, on prior written notice to NBC as provided therein.\n\n\n\n                                 CONFIDENTIAL\n\n \n21. PROGRAM SUBSTITUTION AND TRANSFER\n\n    a. Program Substitution. Except as set forth in paragraphs 21c and 21d \nhereof, NBC may substitute another program for any program hereunder. In such \nevent, Advertiser's participation(s) will be scheduled by NBC in a replacement \nprogram(s) provided such replacement program(s):\n\n       i. is(are) of comparable quality with comparable demographics.\n      ii. is(are) available to advertisers on a participation basis.\n     iii. is(are) comparably priced, and \n      iv. present(s) no product or scheduling conflicts\n\n    c. Daytime Programs (Monday through Friday 9:00am-4:30pm NYCT). NBC has the \nright to change the time period and\/or discontinue telecasting any or all of its\nDaytime Programs on reasonable prior notice. In the event of such discontinuance\nor time period change, Advertiser's participation(s) so affected will be \ntransferred to a mutually agreeable substitute program(s) where available.\n\n    d. Unique Programs. The provisions of this paragraph 21 are not applicable \nto unique programs such as major sporting events, major award presentation \nprograms, and coverage of a special news event.\n\n22. IMPOSSIBILITY OF AGENCY PERFORMANCE\n\n    In the event Agency is unable or fails to supply agency material, NBC may, \nat its option, in addition to any other remedies which may be available to it, \nterminate this agreement forthwith, and upon such termination, Agency, \nAdvertiser, and NBC will be relieved of further liability hereunder except with \nrespect to obligations incurred or arising out of telecasts made prior to such \ntermination.\n\n24. PREEMPTION\n\n    a. General. NBC reserves the right to preempt all or any portion of any \ntelecast of any of the programs hereunder in order to telecast events or \nprograms of public importance, news reports, political programs, sports events, \nspecial programs, or special events. NBC agrees that in the event of such \npreemption, as much advance notice as is practicable will be given to Agency. In\nthe event of a preemption involving the elimination of Advertiser's \nparticipation(s), NBC will be relieved of its obligation to telecast \nAdvertiser's participation(s) hereunder and Agency will be relieved from paying \nany charges hereunder for the participation(s) so eliminated unless Advertiser's\nparticipation(s) are resheduled as may be provided for elsewhere herein.\n\n    b. Partial Political. NBC also reserves the right to preempt the last five \nminutes of any telecast preceding an election day generally observed throughout \na majority of the United States. In the event of such five minutes preemption \nwhich does not affect Advertiser's participation(s), the affected program will \nbe edited to the required length at NBC's expense and there shall not be any \nadjustment in any of the charges hereunder to Agency.\n\n25. NETWORK FAILURE TO TELECAST\n\n    In the event NBC fails to present over its network facilities any telecast \nhereunder because of unavailability of technical facilities, defect or breakdown\nof equipment or transmission facilities, labor dispute, government action, the \nunforeseen absence of a principal performer, or any cause beyond the control of \nNBC, whether of a similar or dissimilar nature. NBC's liability herefor shall be\nlimited solely to cancellation of all charges to Agency hereunder for such \naffected telecast and such failure to telecast shall not constitute a breach of \nthis agreement.\n\n26. LOSS OF SPONSORSHIP\/AUDIENCE DEFICIENCY\n\n    For the purpose of determining loss, each participation shall be treated as \na complete and separate sponsorship. Where split 60-second commercials, the \ncontiguous announcements in a 60-second commercial, and 15-second commercials \nare utilized, each component shall be deemed a complete and separate \nsponsorship.\n\n    If NBC fails to carry all or any part of Advertiser's commercial to the \nextent that the substance of the commercial announcement is lost on the entire \nstation lineup, NBC will negotiate in good faith for a makegood.\n\n    If NBC fails to achieve agreed upon audience delivery, NBC will negotiate in\ngood faith and deliver a makegood no later than by the end of the calendar year \nfollowing the end of a broadcast season.\n\n27. INDEMNIFICATION AND DEFENSE\n\n    a. NBC Obligation. NBC agrees to indemnify and hold harmless Advertiser, \nAgency and their respective directors, officers, agents and employees against\nand from any and all claims, liability, loss and damage, including reasonable\nattorney's fees, caused by or arising wholly or in part out of the telecasting\nof NBC material hereunder and to defend at its own expense any litigation\ninstituted by others against any of them resulting therefrom.\n\n\n                                 CONFIDENTIAL\n\n \n      b. Agency Obligations. Agency agrees to indemnify and hold harmless NBC,\nthe stations over which the sponsored telecasts are carried and their owners,\nthe package producer of the program (if any involved) and the talent thereof and\nthe other advertisers in the program and their agencies, and their respective\ndirectors, officers, agents and employees against and from any and all claims,\nliability, loss and damage, including reasonable attorneys' fees, caused by or\narising wholly or in part out of the telecasting of Agency material hereunder\nand to defend at its own expense any litigation instituted by others against any\nof them resulting therefrom.\n\n      c. Distinction. For the purposes of this paragraph 27 only, Agency\nmaterial (see paragraph 7a) shall be deemed to include ad lib acts or utterances\nof personnel furnished by Agency or Advertiser, and NBC material shall be deemed\nto include material furnished by NBC as referred to in paragraph 6 and ad lib\nacts and utterances of personnel furnished by NBC and material furnished by\nother agencies or advertisers for the telecasts. NBC's acceptance or approval of\nAgency material will not affect Agency's obligation for defense and\nindemnification hereunder.\n\n      d. Control of Litigation. The indemnitor hereunder shall have full control\nof the defense of such litigation and may settle, compromise or adjust the same,\nprovided, however, that the indemnitee, upon relieving the indemnitor in writing\nof the obligations imposed hereunder for defense and indemnification, shall have\nthe right, if it so elects, to conduct such litigation at its own expense by its\nown counsel.\n\n      e. Notice and Duration. The following obligations for defense and\nindemnification shall be imposed only if (1) the indemnitee sends to the\nindemnitor timely written notice of first service of process upon the indemnitee\nand a timely written request to defend the litigation (such notice and request\nshall be deemed timely if given within a reasonable length of time after receipt\nof service by the indemnitee and a reasonable length of time prior to the date\nby which first response to such process is legally required, considering all the\ncircumstances; and (2) while such litigation is pending, the indemnitee upon\nrequest, shall furnish to the indemnitor all relevant facts and documentary\nmaterial in the former's possession or under its control, and shall make its\nemployees or other persons under its control with knowledge of relevant facts\navailable to the indemnitor for consultation and as witnesses at their customary\nplaces of business. The indemnity right and defense obligations hereunder shall\nsurvive the termination or expiration of this agreement and of Agency's status\nas advertising agency for Advertiser.\n\n29.  ABSENCE, INCAPACITY, OR DEATH\n\n      The temporary or sudden absence for any reason, or death, of any regular \nprincipal performer including but not limited to newscasters and sportscasters \non the program(s) hereunder will be accommodated for as NBC deems appropriate by\nsubstitutions of a performance of comparable stature or if practicable, by \nwriting out of the character portrayed or by substitution of another comparable \nprogram.\n\n30.  USE OF NAME AND LIKENESS\n\n      Except for programs which consist of motion picture films, NBC hereby \nauthorizes Agency and Advertiser to use and license others to use during the \nterm hereof the title of the Program(s) and the name, sobriquet, biography and \nlikenesses of regular featured performers in the Program(s) for informative \npurposes and to advertise and publicize the network and the Program(s) through \ntune-in advertising either alone or in conjunction with the advertising of the \nprotected products of Advertiser as designated hereunder. Names, sobriquets, \nbiographies and likenesses of the regular featured performers will not be used \nwithout the prior written approval of NBC. No such use shall be for advertising \n(except as specifically above stated) or merchandising use nor for an express or\nimplied endorsement of any product or service except upon the written permission\nof the person involved and NBC. No such use in connection with the Program(s) \nhereunder may continue beyond the termination of Advertiser's sponsorship in any\nsuch Program(s) or of the participation of such characters or persons in the\nProgram(s), and Agency will take all reasonable steps to require discontinuance\nof utilization of any previously released display material involving any such\nuse within 30 days after such termination.\n\n      For a sports program, the reference to featured performers is to the \nannouncers furnished by NBC and not to any participant in the sporting event.\n\n      For programs which consist of motion picture films, the NBC authorization \nwithin this paragraph 30 shall be limited to the title of the program and shall \nnot apply to the title of a specific motion picture nor to any of the featured \nperformers of the motion picture film.\n\n31.  RIGHTS AND RESTRICTIONS ON USE OF TELECASTS\n\n      NBC may use or license to be used all or any part of the programs \nhereunder by or for the Armed Services and for telecasting in connection with \ndocumentary programs. Neither Agency nor Advertiser will authorize anyone to \ntelecast or to utilize for any commercial purposes, other than for telecasts \nhereunder, the actual telecasts made by NBC, or any part of such telecasts, \nincluding material supplied by Agency, whether such other use of the actual \ntelecasts be by means of tape or film, except for recording of Agency material \nspecifically authorized and released in accordance with applicable NBC policy. \nNothing herein contained shall prevent Agency from making subsequent use of \nAgency material (as distinguished from telecasts by NBC of such material).\n\n\n                                 CONFIDENTIAL\n\n \n32. MATERIAL AND PROPERTY OF AGENCY OR ADVERTISER\n\n    Material or property (other than recorded commercial material) furnished by\nAgency or Advertiser for use on or in connection with the telecasts hereunder\nmust be removed from NBC areas at Agency's expense within six days after the\ndate of program performance, and if not so removed, Agency will be billed and\nwill pay storage charges effective commencing the day following the date of\nprogram performance. All recorded commercial material which has not been\ntelecast for a period of 45 days will be destroyed. If Advertiser submits a\nwritten request to NBC to return such recorded commercial material prior to the\nexpiration of the 45 day period, NBC will endeavor to comply at Agency's\nexpense. Agency and Advertiser hereby release NBC from any liability arising out\nof damage to or loss of any material or property furnished by Agency or\nAdvertiser for use on or in connection with telecasts hereunder except for\ndamage or loss caused by the demonstrable negligence of NBC or its employees. In\nno event will NBC be reponsible for damages to or loss of any such material or\nproperty left with NBC for any extended period except such material or property\nso left pursuant to written agreement of the parties specifically identifying\nthe same. Unless otherwise agreed to in writing, NBC retains title to all\nscenery, props, costumes and other material furnished by NBC.\n\n   NBC will be under no liability with respect to the handling or forwarding of \naudience mail addressed to NBC or the stations listed in the Station List\nintended for use by or for the benefit of Agency or Advertiser.\n\n33. PARTIES\n\n    This agreement is entered into for Advertiser by Agency as Advertiser's \nagent. Agency represents and warrants that it is the duly authorized agent of \nAdvertiser for the purposes of this agreement and the matters contemplated \nhereby and that its arrangements with Advertiser specifically contemplate the \nplacement of the advertising herein provided and the servicing thereof and the \nallowance of agency commission as herein provided. It is understood that Agency \nfunctions as paying agent for Advertiser hereunder and in no sense as an agent \nor representative of NBC and that Advertiser will continue to be obligated for \nall payments due to NBC hereunder until the actual receipt thereof by NBC.\n\n    If at any time during the term hereof Agency ceases to be the advertising\nagency for Advertiser, the then rights and duties of Agency herein shall,\nsubject to the provisions of paragraph 27 hereof, insure to the benefit of and\nbe binding on any other advertising agency, acceptable to NBC as to financial\nresponsibility, designated by Advertiser in writing to NBC therefor. If this\nagreement is executed by Advertiser rather than its advertising agency, or if at\nany time during the term hereof, Agency ceases to be the advertising agency for\nAdvertiser, and if NBC has not exercised its right of termination under\nparagraph 22, and Advertiser has not designated to NBC in writing another\nadvertising agency similarly acceptable, the term \"Agency\" shall mean\n\"Advertiser.\"\n\n34. NOTICES\n\n    Notices to Agency and NBC hereunder shall be given by personal delivery, \npostpaid mail, or overnight courier services to the Agency at its address and to\nthe person if any, shown in Part I and to NBC at 30 Rockefeller Plaza, New York,\nNew York 10112, attention of President, Sales, Television Network. The date of \nsuch personal delivery, mailing, or delivery to courier services shall be deemed\nthe date of service.\n\n35. GENERAL PROVISIONS\n\n    This agreement is made subject to all Federal, State and Municipal laws and\nregulations now or hereafter in force and is not assignable in whole or in part,\nexcept as otherwise herein specifically provided, without the consent of NBC and\nshall be governed by the laws of the State of New York, excluding all principles\nof referral to the laws of other jurisdictions which might otherwise be\napplicable under doctrines of conflicts of laws. Agency and Advertiser represent\nand warrant that this agreement represents a sponsorship arrangement exclusively\nbetween NBC and Advertiser and that no subordination arrangement or other sale\nor exchange has taken place or will take place between Advertiser and any other\nperson or entity. Waiver of rights resulting from breach of any provision hereof\nshall not be deemed to constitute a waiver of rights resulting from any previous\nor succeeding breach of the same or any other provision. Except as herein\notherwise specifically provided, this agreement constitutes the entire Agreement\nbetween the parties relating to the subject matter hereof and may not be\nchanged, modified, renewed, extended or discharged except by an agreement in\nwriting, signed by the party against whom enforcement of the change,\nmodification, renewal, extension or discharge is sought.\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7615,8319],"corporate_contracts_industries":[9452,9519],"corporate_contracts_types":[9613,9620],"class_list":["post-42722","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-general-electric-co","corporate_contracts_companies-net2phone-inc","corporate_contracts_industries-manufacturing__conglomerates","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42722","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42722"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42722"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42722"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42722"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}