**Exhibit10.1**

 

**CONTENT PREPARATION AND DISTRIBUTIONSERVICES AGREEMENT**

 

**by and between**

 

**ASCENT MEDIA GROUP, INC.**

 

**and**

 

**ON COMMAND VIDEO CORPORATION**

 

dated as of

 

March 24, 2003

 

**AscentMedia Group and On Command Video Corporation Confidential Information**

 

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**LIST OF EXHIBITS**

 
| Exhibit A |  - | Content Preparation  Services Agreement                  |
|-----------|---------|----------------------------------------------------------|
|      |    |                                                     |
| Exhibit B |  - | Content Distribution  Service Level Terms and Conditions |
|      |    |                                                     |
| Exhibit C |  - | Link Budget                                              |
|      |    |                                                     |
| Exhibit D |  - | Mutual Nondisclosure  Agreement                          |
|      |    |                                                     |
| Exhibit E |  - | Satellite Specifications                                 |
|      |    |                                                     |
| Exhibit F |  - | Additional Payment  Terms                                |
|      |    |                                                     |
| Exhibit G |  - | Limitation of Liability                                  |
|      |    |                                                     |
| Exhibit H |  - | Early Termination Fee                                    |

 

**Confidential Information of AscentMedia Group and On Command Video Corporation**

 

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**Content Preparation and DistributionServices Agreement**

 

**This****ContentPreparation and Distribution Services Agreement**(this “**Agreement**”),dated as of March 24, 2003 (the “**EffectiveDate**”), is by and between Ascent Media Group, Inc., a Delawarecorporation with offices at 520 Broadway, 5th Floor, Santa Monica,CA 90401 (“**Ascent**”), and On Command Video Corporation, a Delawarecorporation, with offices at 4610 South Ulster Street, 6th Floor,Denver, CO 80237 (“**OCV**”). “**Party”**means each party individually, and**“Parties**” means OCV andAscent.

 

The Parties, for good andvaluable consideration, the receipt and sufficiency of which is herebyacknowledged, agree as follows:

 

**Section1.**    **Definitions.**

 

As used in thisAgreement, the following defined terms shall have the meanings set forthbelow.  Other capitalized terms used inthis Agreement are defined in the context in which they are used and shall havethe meanings there indicated.

 

**1.1**                               “**AMNS Burbank”** means AscentMedia Network Services/Burbank, an operations department of Ascent.

 

**1.2**                               **“Business Day”**shall meaneach day included in the definition of Regular Business Hours, except that forpurposes of submitting Transmission Requests, OCV will be deemed to havesubmitted the Transmission Request one Business Day prior to such Request if itsubmits the request (i) prior to 12 p.m. Pacific Time on the preceding BusinessDay for all Transmission Requests scheduled to begin before 12 p.m. thefollowing Business Day, (ii) prior to 5 p.m. Pacific Time on the precedingBusiness Day for all Transmission Requests scheduled to begin after 12 p.m. onthe following Business Day.

 

**1.3**                               “**Content**” means the content ofany programming material and associated Scripts included in the OCV VODOffering to its end customers, and software associated with the OCV VODOffering.

 

**1.4**                               **“Content Distribution Services”**or **“Services”**means themaintenance and operation of the Content Distribution System and provision ofthe services described in the Service Level Terms and Conditions, attached asExhibit B, all in accordance with this Agreement.

 

**1.5**                               “**Content Distribution System**”means a content distribution system consisting of the Uplink Facility andaccess to the Satellite Transponder for the purpose of delivering Transmissionsfrom the Uplink Facility to the Satellite Transponder in accordance with theterms and conditions of this Agreement.

 

**1.6**                               “**Effective Date**” is defined inthe first paragraph of this Agreement.

 

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**1.7**                               “**Equipment**” means anyhardware, equipment and related materials (excluding Packages), if any,transferred to Ascent for use pursuant to this Agreement during the Term.

 

**1.8**                               “**FEC**” means the Forward ErrorCorrection rate applied to Content files. Unless otherwise specified by OCV in a Transmission Request, the FECrate shall be 5%.

** **

**1.9**                               “**Force Majeure Event**” is defined in Section12.

 

**1.10**                        “**Governmental Authorities**”means all international, foreign, United States, state and local governmentalauthorities, regulatory bodies and courts having jurisdiction over the terms ofthis Agreement.

 

**1.11**                        **“Intellectual Property Rights”** means any:

 

(a)                                    patentswhether registered or unregistered;

 

(b)                                  inventionswhether or not capable of protection by patent or registration;

 

(c)                                   rightsin commercial information and technical information, including know-how,research and development data, manufacturing methods and data, specificationsand drawings, formulas, trade secrets, algorithms, prototypes and researchmaterials;

 

(d)                                   copyrights(including without limitation any application, registration or renewal relatedthereto), registered designs or design rights (whether or not capable ofprotection by registration), trademarks (including without limitation servicemarks, logos, sound logos, certification marks, and trade names, together withany applications, registrations and renewals for any of the foregoing and thegoodwill associated with each), mask work rights, and database rights;

 

(e)                                   applicationsfor the grant of rights of the foregoing descriptions; and

 

(f)                                      rightsof a similar or analogous nature to any of the foregoing whether in existencenow or in the future and wherever located in the world.

 

**1.12**                        “**Laws**” is defined in Section10.1.7.

 

**1.13**                        “**Licensed Rights**” means any andall rights, licenses, consents and approvals that are necessary for OCV toprovide Ascent with Packages in the form contemplated by this Agreement and forAscent to perform its obligations under this Agreement.

 

**1.14**                        **“Link Budget”** means the linkbudget attached as Exhibit C and incorporated herein.

 

**1.15**                        “**Losses**” means all losses,costs, expenses, liabilities and damages reasonably incurred resulting from orrelating to under any claim, demand, settlement, litigation or final judgment,and all related reasonable and documented costs and expenses, includingreasonable and documented legal fees, fines, interest and penalties.

 

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**1.16**                        “**Monthly Fee**” is defined inExhibit F.

 

**1.17**                        “**MPAA**” means the MotionPicture Association of America.

 

**1.18**                        **“OCV VOD Offering”**means theContent for movies, video games and audio music that OCV offers to its endcustomers on a video-on-demand basis.

 

**1.19**                        “**Package**” means the content(i.e., programming material and Scripts) for each item of Content, which hasbeen prepared for Transmission.

 

**1.20**                        “**Payment Past Due Date**” is asdefined in Section 9.2.

 

**1.21**                        “**Receive Station**” means theequipment, consisting of a satellite dish and a receive personal computer(commonly referred to as a “catcher”) at either (i) a hotel, motel, resort orother location in the continental United States, Hawaii, Alaska, and parts ofCanada and the Caribbean that participates in the OCV VOD Offering, or (ii) anylocation for the purpose of system operations or software or systemdevelopment.  A hotel, motel or resortmay have more than one catcher and OCV may increase without limitation thetotal number of Receive Stations during the Term.

 

**1.22**                        **“Regular Business Hours”**meansMonday through Friday, 8 a.m. to 5 p.m. Pacific Time, excluding the followingAscent holidays, which may be updated from time to time by prior written noticeof Ascent: New Year’s Day, President’s Day, Memorial Day, Independence Day,Labor Day, Thanksgiving, the day after Thanksgiving and Christmas Day.

 

**1.23**                        “**Satellite**” means thesatellite listed on Exhibit E, or such other satellite to which Ascentis permitted under this Agreement to send Transmissions.

 

**1.24**                        **“Satellite Access Agreement**”means an agreement between Ascent and the Satellite Provider allowing Ascent toaccess the Satellite Transponder on terms and conditions agreed by Ascent andthe Satellite Provider.

 

**1.25**                        “**Satellite Access Requirements**”means all technical, operational and access requirements of Ascent set forth inthe Satellite Access Agreement.

 

**1.26**                        “**Satellite Provider**” means theowner, agent or broker of the Satellite to which Ascent will contract with toreceive access to the Satellite Transponder.

 

**1.27**                        **“Satellite Transponder**” meansthe satellite transponder listed in Exhibit E, or such other satellitetransponder to which Ascent is permitted under this Agreement to sendTransmissions.

 

**1.28**                        **“Scripts”** means all data,text or information associated with programming material.

 

**1.29**                        “**Service Credit**” means anamount credited to OCV due to Service Failures, which shall offset any amountowed by OCV to Ascent under this Agreement in the second month following themonth such Service Failures occurred.

 

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**1.30**                        “**Service Failure**” means anyproblem or failure in the Content Distribution System by Ascent to distribute aPackage pursuant to a Transmission Request (as defined in Exhibit B,Section 1.1.2) that impacts the Transmission schedule.  A Service Failure shall not include any problemor failure to complete Transmissions due to the failure of the Satellite, theSatellite Transponder, a Receive Station, OCV or OCV’s failure to meet itsobligations under this Agreement.

 

**1.31**                        **“Store and Forward Hub**” meansthe transmission origination station (commonly referred to as the “pitcher”).

 

**1.32**                        **“Technology”** meansalgorithms, designs, drawings, formulae, know-how, ideas, mask works,inventions, data, programs, improvements, developments, discoveries, concepts,methodologies, techniques, processes, software, specifications, and other formsand types of intangible property, in each case whether or not patentable.

 

**1.33**                        “**Term**” is as defined inSection 2.

 

**1.34**                        “**Test Package**” is defined inSection 1.1.13 of Exhibit B.

 

**1.35**                        “**Transmission**” means thetransmission of a single or a group of Packages using the Content DistributionSystem.

 

**1.36**                        “**Uplink Facility**” means,collectively, an earth station facility, an Internet Protocol (IP)encapsulator, an HPA, and a Store and Forward Hub, provided and maintained inaccordance with the terms specified in this Agreement.

 

**Section2.**  **Term.**

 

Theterm of the Agreement shall commence on April 1, 2003 (the “**Commencement Date**”) and shall expire fiveyears after the Commencement Date, unless sooner terminated as providedunder this Agreement (the “**Term**”).  This Agreement shall be effective asof the Effective Date.  This Agreementwill automatically terminate upon the expiration of the Term, unless terminatedearlier by mutual agreement in writing by the Parties or as provided in thisAgreement.

 

**Section3.**  **ContractDocuments.**

 

The contract documentsconsist of this Agreement and each of the Exhibits (each as may be amended fromtime to time in accordance with the terms of this Agreement), which areattached and incorporated into this Agreement by this reference, except that ExhibitA is attached for the convenience of the Parties only, and shall beconsidered a separate agreement between the Parties.

 

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**Section 4.  Description of Services.**

 

**4.1**                               **Content Distribution Services.**

 

**4.1.1**                     **Transmission Services**.  Ascent shall provide all services necessaryto provide Content Distribution Services for OCV as specified under thisAgreement.

 

**4.1.2**                     **Expanded Services.**  If Customer wishes to expand the scope ofContent Distribution Services (the “**ExpandedServices**”), the Parties shall mutually agree in writing on the termsof such expanded scope of Content Distribution Services, including but notlimited to the related pricing terms, before Ascent has an obligation toperform the Expanded Services.

 

**(a)**                                  **Satellite Transponder BandwidthOption. **To the extentbandwidth is available, OCV shall have the option to increase the bandwidth ofthe Satellite Transponder in 1-Mhz increments for a fee per Mhz set forth inSection 9.1.1(c).  Once increased, thebandwidth shall remain at the new level for the duration agreed to by theParties.

 

**4.1.3**                     **Ad-Hoc Services.**  Ascent shall provide ad-hoc services, suchas software development and documentation for satellite distributionintegration (“**Ad-Hoc Services**”),provided that the Parties mutually agree in writing on the terms of the Ad-HocServices, including but not limited to the related pricing terms, before Ascenthas an obligation to perform the Ad-Hoc Services.

 

**4.1.4**                     **Back-Up Services.**  If Content Distribution Services areunavailable for any reason, including a Force Majeure Event, Ascent shall usecommercially reasonable efforts to use alternate Ascent facilities, obtain analternate third party provider or identify options to reconfigure thefacilities used for the Content Distribution Services, as needed, in order forAscent to continue providing the Content Distribution Services at the samepolarity and utilizing a satellite in the same orbital position as theSatellite (the “**Back-Up Services**”).  Subject to subsection (d) below, the termsof this Section are not intended to limit OCV’s right to exercise all of itsremedies under this Agreement, including its rights under Section 14.5.  Should Ascent provide Back-Up Services:

 

(a)                                  SuchBack-Up Services shall be provided, to the extent possible, through the periodthat the Content Distribution Services are unavailable;

 

(b)                                 Ascentshall have no liability for services, or omission of services, provided by analternate third party provider, if the reason for the

 

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unavailability of ContentDistribution Services is a Force Majeure Event;

 

(c)                                  Ascentshall promptly restore the Content Distribution Services in accordance with ExhibitB; and

 

(d)                                 OCVshall not be entitled to Service Credits during the period in which Back-UpServices are being provided in accordance with the terms and conditions of thisAgreement, including the service level requirements set forth in Exhibit B.

 

(e)                                  OCVshall continue paying the Monthly Fee (and other applicable fees, if any).

 

**4.2**                               **Content Distribution System.  **Ascent shall provide a ContentDistribution System, which shall be operational twenty-four (24) hours a day, seven(7) days a week.

 

**4.3**                               **Uplink Facility.**

 

**4.3.1**                     **Requirements**.  Ascent shall provide and maintain an UplinkFacility meeting the specifications set forth below.  Ascent shall monitor the Uplink Facility twenty-four (24) hours aday, seven (7) days a week in accordance with the terms and conditions in thisAgreement.  The Uplink Facility shallhave the following specifications:

 

**(a)**                                  Capableof transmitting Packages to Satellite Transponder at a 1.5 Mbps sustainedinformation rate, which is burstable to 3.0 Mbps, or such greater numbers asthe Parties agree upon if OCV exercises its option to increase the bandwidth ofthe Satellite Transponder pursuant to Section 4.1.2(a);

 

**(b)**                                  Digitalvideo broadcast (DVB) compliant as determined by the Receive Station specificationsprovided by OCV;

 

**(c)**                                  FECcapability;

 

**(d)**                                  SatelliteAccess Requirements and operation parameters compliant;

 

**(e)**                                  FederalCommunications Commission (FCC) compliant;

 

**(f)**                                    Withinthree (3) months from the Effective Date, Uplink Facility will have a redundantuplink, consisting of a radio frequency (RF)transmit chain, a DVB modulator, an IP encapsulator, a Store and Forward Huband a catcher.

 

**(g)**                                 Provisionof security of the Uplink Facility in compliance with MPAA guidelines,including physical access control to RF transmit chain, DVB modulator, IPencapsulator, and Store and Forward Hub, and

 

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application access control to the IP encapsulator andthe Store and Forward Hub; and

 

**(h)**                                 Storageof the Content at the Uplink Facility in compliance with MPAA guidelines.

 

**4.3.2**                     **Relocation/Changes**.  Ascent may, upon sixty (60) days priornotice, relocate the Uplink Facility and/or change its configuration so long asAscent shall use diligent efforts not to disrupt the Content DistributionServices.  All terms and conditionsrelating to Ascent’s obligations to complete Transmissions and OCV’s remediesfor any failure to do so apply to this subsection.

 

**4.3.3**                     **Satellite Transponder. **Ascent shall enter into an agreementwith the Satellite Provider for a transponder with specifications provided inSection 4.3.1 above covering the continental United States, Hawaii, Alaska, andparts of Canada and the Caribbean for the Term.  Such agreement shall obligate the Satellite Provider to provide aSatellite Transponder that is non-preemptible and protected such that anyfailure or unavailability of the Satellite or Satellite Transponder, unless dueto OCV’s breach of this Agreement or its gross negligence or willful misconduct,will be restored on either another transponder on the Satellite or a NewSatellite then in orbit at no additional cost. Ascent acknowledges that its obligations set forth in this Section 4.3.3constitute material obligations of Ascent.

 

**4.3.4**                     **Acceptability of Satellite Transponder**.  OCV acknowledges that the SatelliteTransponder in its current working order is appropriate for use by Ascent inperforming its obligations under this Agreement.

 

**4.3.5**                     **Disclosure to OCV**.  Ascent agrees to make diligent efforts toinclude in the Satellite Access Agreement a requirement that the SatelliteProvider notify Ascent of any anticipated or current technical problemsrelating to the Satellite, including problems with the Satellite’s CPU ortransponder failures.  Ascent agrees toimmediately provide to OCV all non-confidential information in its possessionrelating to the performance, problems or capacity of Satellite or the SatelliteTransponder.  To the extent any suchinformation is deemed confidential, Ascent will seek permission from theSatellite Provider to share such information with OCV subject to OCV’sagreement to consider such information as Ascent’s Confidential Information (asdefined in the NDA) and, if required by the Satellite Provider, OCV’s executionof a nondisclosure agreement with the Satellite Provider.

 

**4.3.6**                     **Compliance with Satellite AccessAgreement**.  Ascent agrees tocomply with all Satellite Access Requirements. Ascent shall provide OCV with immediate notice if the Satellite Providerhas indicated, whether in writing

 

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or orally, that it considers Ascent to be innoncompliance or breach of any of the Satellite Access Requirements.

 

**4.3.7**                     **Satellite or Transponder Failure**.  Unless due to OCV’s breach of this Agreementor its gross negligence or willful misconduct, if the Satellite or SatelliteTransponder fails, the Parties agree that the following terms apply:

 

**(a)**                                  **IrreparableFailure. **If (i) theSatellite Transponder or Satellite fails and such failure is irreparable asdetermined by the Satellite Provider, (ii) the Satellite Transponder orSatellite is unavailable due to actions of a Governmental Authority, or (iii) achange of Satellite Transponder is mandated by the Satellite Provider, thenAscent shall take all reasonable measures to exercise its right under theSatellite Access Agreement to secure access on an alternative Ku-bandtransponder on the Satellite or, if unavailable, on a Ku-Band transponder on adifferent satellite of the Satellite Provider then in orbit.  In exercising its rights under the SatelliteAccess Agreement, Ascent shall take all reasonable measures to secure analternative Ku-band transponder on the same polarity as the SatelliteTransponder, if available.  If the SatelliteProvider does not provide an alterative transponder, Ascent shall take allreasonable measures to secure access on an alternative Ku-band transponder (an“**Alternative Transponder Agreement**”).Ascent shall assume any cost increase in securing access to an alternativetransponder, provided, however, that to the extent such cost is more than 50%greater than Ascent’s cost under the pre-existing Satellite Access Agreement,then (i) OCV shall pay Ascent’s cost in excess of such 50% threshold, and (ii) Ascentshall provide notice of such cost increase prior to entering into suchAlternative Transponder Agreement; and (iii) Ascent shall comply with a requestby OCV to limit the term of the Alternative Transponder Agreement.  In either event, OCV, at its cost, shallre-point and re-tune all current Receive Stations to receive Transmissions fromthe new transponder.  If Ascent isunable to obtain an alternative transponder from the Satellite Provider or anAlternative Transponder Agreement in accordance with the terms of thissubsection, but has fully complied with its obligations under this Agreement,it shall be construed as a Force Majeure Event retroactive to the date offailure of the Satellite or Satellite Transponder.

 

**(b)**                                  **RepairableSatellite or Transponder Failure**. If the Satellite Transponder or Satellite fails, and the SatelliteProvider has indicated that it will repair such failure within thirty (30)days, OCV and Ascent shall be subject to the Satellite Provider’s procedures,and the rights and obligations of Ascent relating to the initiation ofTransmissions shall be postponed until such repairs are completed and the termsof Section 12 shall apply.  The Partiesagree that should the Satellite Transponder or Satellite fail to be operationalas required for Ascent to perform its

 

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obligations under this Agreement within thirty (30)days after the date of the Satellite or Satellite Transponder failure, thensuch failure will be deemed irreparable and the terms of Section 4.3.7(a) aboveshall apply.  Ascent shall use diligentefforts to work with the Satellite Provider toward the timely repair of theSatellite Transponder or Satellite.

 

**4.3.8**                     **New Satellite or Satellite Transponder**.Ascent, at its sole cost and expense, may utilize a different SatelliteTransponder or Satellite (either, “New Satellite”) to fulfill its obligationsunder this Agreement.  If Ascent decidesto do so and such decision is not the result of a Satellite or SatelliteTransponder Failure, then Ascent shall provide OCV with ninety (90) days priorwritten notice of its intent to switch to a New Satellite and the followingterms shall apply:

 

**(a)**                                  Ascent,at its cost, shall re-point and re-tune all current Receive Stations to receiveTransmissions from the New Satellite and Ascent shall use commerciallyreasonable efforts not to disrupt the Content Distribution Services, and in anyevent shall not disrupt scheduled Transmissions for more than an aggregate oftwo (2) days.

 

**(b)**                                  Allterms and conditions of this Agreement relating to the Satellite, SatelliteTransponder and Satellite Access Agreement, shall apply to the New Satellite.

 

**(c)**                                  Uponproviding OCV with written notice of its decision to switch to a New Satellite,the Parties will work together to develop a plan to assess and minimize theimpact, if any, on Ascent’s ability to perform Content Distribution Servicesunder this Agreement.  Ascent shall notswitch to a New Satellite if Ascent reasonably determines that doing so willmaterially impact Ascent’s ability to perform the Content Distribution Servicesunder this Agreement for a period of two (2) days or more, unless Ascentprovides Back-Up Services (where such Back-Up Services distribute Packages tothe pre-existing Satellite Transponder) at no cost to OCV pursuant to Section4.1.4 of this Agreement and in compliance with the terms and conditions of thisAgreement until all Receive Stations are capable of receiving Transmissionsthrough the New Satellite.

 

**(d)**                                  Withinfourteen (14) days after the Parties develop the plan described in Section4.3.8(c) above, if OCV sends written notice to Ascent that OCV reasonablydetermines that OCV will incur significant expense as a result of the switch toa New Satellite, then Ascent shall not switch access to a New Satellite unlessthe Parties agree upon reimbursement terms for OCV’s expenses.

 

**(e)**                                  OCV’sfailure to send notice pursuant to Section 4.3.8(d) above shall be deemed OCV’sapproval of Ascent’s proposed switch to a New

 

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Satellite subject, however, to Ascent’s compliancewith the terms of Section 4.3.8.

 

**4.4**                               **Service Level Terms and Conditions.**  Ascent agrees to provide the servicesdescribed in the Service Level Terms and Conditions, attached as Exhibit Band incorporated into this Agreement.

 

**4.5**                               **Content Preparation Services. **Ascent agrees to provide the servicesdescribed in the Content Preparation Services Agreement as attached as ExhibitA to this Agreement.

 

**Section 5.  OCV Obligations.**

 

OCV agrees that it shall comply with the responsibilities set forth inthis Section at its sole cost and expense. To the extent Ascent is unable to perform its obligations due to OCV’sfailure to perform its obligations, Ascent’s failure to perform shall beexcused until such time as OCV performs its obligations.

 

**5.1**                               **Licensed Rights**.  OCVshall obtain all Licensed Rightsin accordance with Section 10.3.1 of the Agreement.

 

**5.2**                               **Facilitate Flow of Information**.  OCV shall facilitate the flow of all informationrequired by Ascent to perform the Content Distribution Services including,without limitation, access to appropriate OCV staff.

 

**5.3**                               **Facilitate Access to Upgrades**.  OCV shall facilitate the access to anyfuture OCX hardware and software upgrades to ensure performance and reliabilitybenchmarks.

 

**5.4**                               **Vendor Relationships**.  If required for Ascent to perform itsobligations, OCV will facilitate the relationship between OCV’s vendors orsystem integrators (such as DVA) with Ascent, such that Ascent receivesinformation or assistance required for it to perform services under thisAgreement.

 

**5.5**                               **Equipment**.  Subject to Section 11 (IntellectualProperty), OCV will install, maintain, service and upgrade (as needed)Equipment on Ascent’s premises.

 

**5.6**                               **ServiceLevel Terms and Conditions**. OCV shall fulfill its obligations under the Service Level Terms and Conditions attached as Exhibit B to thisAgreement.

 

**5.7**                               **Receive Stations**.  OCV shall purchase, install, operate,monitor and maintain all Receive Stations.

 

**5.8**                               **Compatibility**.  OCV shall ensure that the configuration ofall Receive Stations are compatible with the Content Distribution System,provided such Content Distribution System meets the requirements specified inthis Agreement.

 

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**5.9**                               **Content Obligations**.  OCV represents that it is and will remain incompliance with all its obligations with respect to the Content and the OCV VODOffering, whether under contractual arrangement or by Law, and that OCV shalldeliver Content to Ascent for use pursuant to this Agreement that is encrypted,not corrupt and in a condition in which Ascent is able to perform the Services.

 

**Section 6.**    **OCV Rights.**

 

**6.1**                               **Offering to End Customers of OCV**.  OCV has sole control and discretion over theContent offered to its end customers, including, without limitation, allaspects of scheduling, and all title and rights for Content, and availabilityof Content.  OCV has sole control anddiscretion over consumer branding and promotion for its end customers.

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**6.2**                               **Licensed Rights**.  OCV has sole control and discretion over theterms of the Licensed Rights; provided that such Licensed Rights shall include,at a minimum, those rights that are required for Ascent to perform itsobligations under this Agreement.

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**6.3**                               **Technology**.  OCV has sole control and discretion overTechnology used by OCV for its Equipment, servers and related applications,subject to Section 5.8.

 

**Section 7.**  **Quality Assurance; Security.**

 

**7.1**                               **Project Managers; Meetings. **Each Party shall designate one employeewith decision-making authority to serve as the principal technical contact forsuch Party during the term of this Agreement (each a “**Project Manager**”).  The Project Managers shall work together toensure that the Services proceed in a timely manner.  Either Party may change its Project Manager at any time and fromtime to time by giving the other Party written notice.  Both Parties agree that the respectiveProject Managers shall hold phone calls or meetings on a regular basis, attimes and locations mutually agreed upon, to discuss any matters arising underthis Agreement.

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**7.2**                               **Inspections**.  Ascent shall provide OCV and OCV’sdesignated representatives access to Ascent’s facilities involved in providingthe Services to conduct progress reviews, “walk-throughs” and discussions withpersonnel and management of Ascent regarding the status and conduct of Ascent’sperformance of its obligations under this Agreement so long as OCV and OCV’sdesignated representatives are accompanied by an authorized representative ofAscent and such access is (i) during Business Hours, (ii) scheduled uponreasonable advanced notice, (iii) does not disrupt the conduct of Ascent’snormal business, (iv) complies with all Ascent access control and securityrequirements, (v) does not violate any Law or MPAA guideline, and (vi) isreasonable in time, scope and frequency.

 

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**7.3**                               **Notice and Reporting to OCV.**  Subject to any limitations based on Section4.3.5 of this Agreement and during Business Hours, Ascent agrees to (i)promptly notify and provide details about any expected or likely delays,resource shortages or other issues that could affect its ability to providetimely and/or conforming deliveries and services under the Agreement and (ii)respond to reasonable requests for information regarding the matterscontemplated in this Agreement by OCV.

 

**7.4**                               **Time of the Essence.**  Ascent acknowledges and agrees that time isof the essence in the performance of its obligations hereunder.  This provision shall not impose anyadditional time constraints on matters that have been expressly agreed tohereunder.

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**7.5**                               **Restricted Access**.  Ascent shall allow only those employees andauthorized agents and independent contractors (collectively, **“AscentPersonnel”**) actually providing services under this Agreement toaccess the Content and/or Packages, and such Content and/or Packages shall beaccessed only to the extent needed by Ascent Personnel to perform their responsibilities.  Ascent agrees that (i) Content and/orPackages shall not leave Ascent’s possession or control, except to transfer toOCV or distribute Content in accordance with OCV’s instructions as contemplatedunder this Agreement; and (ii) Ascent shall use Ascent Personnel to effect anytransfer of Content and/or Packages within Ascent’s facilities.

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**7.6**                               **Notice of Security Issues**.  Ascent shall provide prompt notice withsupporting details to OCV if it becomes aware of any of the following: (i) anyfailure to conform to the MPAA security guidelines or the requirements in theAgreement relating to security of Content, Packages, the Uplink Facility or anypart of the Content Distribution System, whether or not such failure results inany actual unauthorized use or a breach of security; (ii) any unauthorized useof the Content, Packages or OCV’s Confidential Information; or (iii) any breachof security relating to storage facilities at Ascent.

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**Section 8.**    **Link Budget.**

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**8.1**                               **Obligations**.  With respect to obligations regarding the Link Budget, theParties agree that Ascent (i) shall be responsible only for complying withuplink configuration matters discussed in the Link Budget, (ii) shall take allreasonable measures to have the Satellite Provider comply with the spacesegment matters discussed in the Link Budget, and (iii) shall not beresponsible for complying with Receive Station matters discussed in the LinkBudget.

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**8.2**                               **Acceptability of Link Budget**.  OCV acknowledges that the Link Budget isacceptable for use by it and Ascent in performing their respective obligationsunder this Agreement.

 

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**Section 9.  Payment and Fees.**

 

**9.1**                               **Fee Schedule**.  In consideration of the Services to beperformed by Ascent, OCV shall pay to Ascent the amounts described below, asadjusted in accordance with Section 9.2 and offset by any Service Credits.  All Monthly Fees (as defined in Exhibit F)shall be due and payable 30 days after receipt of an invoice for completedservices.  All other fees shall be dueand payable within 30 days after receipt by OCV of an invoice for completedservices or authorized expense reimbursable by OCV, if applicable.

 

**9.1.1**                     **Content Distribution Services Fees. **The fees for Content DistributionServices shall be provided in Exhibit F and incorporated herein byreference.

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**9.1.2**                     **Content Preparation Services Fees. **The fees for Content PreparationServices shall be provided in Exhibit A.

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**9.1.3**                     **Payments.**  Payments to Ascent shall be made in U.S.Dollars via check or wire transfer to the following account:

 
| If  mailed by U.S. Mail: | Ascent  Media Group, Inc.             |
|--------------------------|---------------------------------------|
|                     | Dept 2146                             |
|                     | Los Angeles, CA  90084-2146           |
|                     |                                  |
| If mailed by courier:    | Ascent Media Group,  Inc.             |
|                     | 2255 North Ontario  Street, Suite 350 |
|                     | Burbank, CA 91504                     |
| Wire Transfer:           |                                  |
| Bank:                    | Wells Fargo Bank, N.A.                |
| Address                  | San Francisco, CA, USA                |
| ABA  No.:                | 121000248                             |
| Acct  No.:               | 4122834229                            |
| Account  Name:           | Ascent Media Group                    |
| Contact:                 | Rebecca Clute, Vice  President        |
|                     | Wells Fargo Bank, N.A.                |
|                     | 6001 Topanga Canyon  Blvd. #205       |
|                     | Woodland Hills, CA  91367             |
|                     | (818)716-3248                         |
| Swift  #                 | WFBIUS6S                              |

 

**9.2**                               **Late Payment**.  Undisputed past due payments shall incur alate payment charge of one and one-half percent (1.5%) thereof per month (orthe maximum rate permitted by law, if less). A payment shall be deemed past due thirty-one (31) days after suchpayment is due and payable (the “**Payment Past Due Date**”).  Billing disputes shall be submitted inwriting (including confirmed e-mail

 

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transmission) to Ascent within 30 days after OCVdiscovers the billing issue, but in no case later than 90 days after the dateof the invoice.

 

**9.3**                               **Fees Exclusive of Taxes**.  All amounts payable under the Agreement areexclusive of any taxes or other government charges, incurred by Ascent as aresult of provision of the Services, equipment and facilities by Ascentpursuant to the Agreement.  OCV will payany and all (a) sales, use, excise or other taxes (other than taxes measured onthe income of Ascent), and (b) regulatory fees or surcharges of allGovernmental Authorities, applicable to the Services to be provided by Ascentto OCV.  If OCV is exempt from suchtaxes, it shall provide Ascent with a tax-exempt certificate.

 

**9.4**                               **Additional Payment Terms.**  The parties agree to the Additional PaymentTerms defined in Exhibit F.

 

**Section 10.            Representations and Warranties.**

 

**10.1**                        **Mutual Representations and Warranties**.  Each Party represents and warrants to theother that:

 

**10.1.1**              It has the right, power and authority toenter into and to fully perform its obligations under this Agreement.

 

**10.1.2**              When executed and delivered, thisAgreement shall constitute a valid and binding obligation of such Party.

 

**10.1.3**              It has not entered and shall not enterinto any agreement or arrangement that could reasonably be expected to limitthe performance of its obligations, or diminish or impair the rights of theother Party, hereunder.

 

**10.1.4**              There are no liens, encumbrances,actions, suits or proceedings pending before any Governmental Authority or, tothe knowledge of such Party, threatened against it, that could reasonably beexpected to materially limit the performance of its obligations, or tomaterially impair the rights of the other Party, hereunder.

 

**10.1.5**              No approvals, consents, authorizations,permissions, licenses, certificates or permits of any third party, other thanthe Licensed Rights, are needed for the performance of its obligationshereunder that have not been obtained and that do not remain in full force andeffect as of the execution hereof.

 

**10.1.6**              As of the date of this Agreement, (a) ithas neither sought nor has any intention voluntarily to seek the protection ofany bankruptcy law; (b) it has no reason to believe that any of its creditorshas caused or intends to cause it to become the subject of any proceedingsunder any bankruptcy law; and (c) it has no knowledge of any state of factswhich, if known to its creditors, (i) would cause it voluntarily to seek theprotection of any

 

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bankruptcy law, or (ii) might reasonably cause anysuch creditor to cause it to become the subject of any proceeding under anybankruptcy law.

 

**10.1.7**              In the performance of its obligationshereunder, it shall comply with all applicable laws, rules, regulations,statutes and ordinances of all governmental entities including local, state,federal or international, now or hereafter enacted (“**Laws**”).

 

**10.2**                        **Ascent Representations and Warranties.**

 

**10.2.1**              **Performance; Productivity**.  Ascent represents and warrants that Ascentshall perform all services under this Agreement in a professional mannerconsistent with industry standards and the terms and conditions of thisAgreement.

 

**10.2.2**              **Non-Infringement**.  Ascent represents and warrants that, to the best of its knowledgeand belief, the Content Distribution System and the equipment used by Ascent inconnection with the performance of its obligations hereunder do not infringeupon or misappropriate any Intellectual Property Right of any third party.

 

**10.2.3**              **No Additional Warranties**.  THE WARRANTIES AND REPRESENTATIONS CONTAINEDIN THIS AGREEMENT ARE THE ONLY WARRANTIES AND REPRESENTATIONS MADE BY ASCENTAND CAN BE AMENDED ONLY BY A WRITTEN INSTRUMENT SIGNED BY AN OFFICER OF ASCENT.  ASCENT EXPRESSLY DISCLAIMS ALL OTHERWARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OFMERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

**10.3**                        **OCV Representations and Warranties**.  OCV represents and warrants that:

 

**10.3.1**              **Licensed Rights. **OCV has obtained and will maintain throughout the time inwhich Ascent uses the Content pursuant to this Agreement, all Licensed Rightsfor Ascent to receive, store and transmit Packages in accordance with the termsof this Agreement and otherwise perform its obligations under this Agreement.

 

**10.3.2**              **Own Use**. The services to be performed by Ascent are for OCV’s own use to conductits business and in no event shall OCV be permitted to resell the ContentDistribution Services, in whole or in part, to any other person or entity.

 

**10.3.3**              **Lawful Purpose**.  OCV shall use the Content Distribution Services only for lawfulpurposes and in compliance with all Laws.

 

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**10.3.4**              **Non-Infringement**.  To the best of its knowledge and belief, the Equipment does notinfringe upon or misappropriate any Intellectual Property Right of any thirdparty.

 

**10.4**                        **Insurance**.  Each Party shall obtain and maintain duringthe Term and for one (1) year thereafter (i) Errors and Omissions Insurance, ona claims made basis, with minimum limits of Ten Million Dollars ($10,000,000),protecting it and the other Party and its affiliates (its “Affiliates”) fromany errors and omissions of itself under this Agreement, and (ii) MediaLiability Insurance, on an occurrence form basis, with minimum limits of TenMillion Dollars ($10,000,000), protecting it and the other Party and itsAffiliates from any claims based on the Content.  The foregoing insurance coverage may not be reduced or canceledwithout thirty (30) days prior written notice to the other Party.  All insurance shall be primary and notcontributory with regard to any other available insurance held by the otherParty or its Affiliates.  All insuranceshall be written by companies with a BEST Guide rating of A- or better.  Certificates of insurance shall be promptlyfurnished to the other Party at its request, and such policies shall includethe other Party and its Affiliates as additional insureds, if the other Party isnot already named as a primary insured on the policies.

 

**Section 11.**                                   **Intellectual Property.**

 

**11.1**                        **OCV License**. ** **OCV grants Ascent a non-exclusiveand non-transferable license to use the Packages and Equipment supplied by oron behalf of OCV under this Agreement during the Term solely for the purpose ofperforming Content Distribution Services for OCV in accordance with thisAgreement.  Upon termination orexpiration of this Agreement for any reason, all Packages and Equipment stillin Ascent’s possession shall be immediately returned to OCV.

 

**11.2**                        **OCV Property**.  Subject to the license set forth in Section11.1 above, Ascent shall have no right, title or interest in the Equipment andPackages, or any Intellectual Property Rights embodied therein.

** **

**11.3**                        **Ascent Property**.  Ascent, in connection with the performanceand preparation of the work to be performed hereunder may utilize, invent, makeor develop Technology to achieve a particular or desired result in the courseof performing the Services, and Ascent shall retain all Intellectual PropertyRights embodied therein.

 

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**Section 12.**                                   **Force Majeure.**

 

Subject to Ascent’s performance of its obligations, if any, relating toor arising out of the Force Majeure Event (as defined below), Ascent is notliable, either wholly or in part, for nonperformance or a delay in performancedue to *forcemajeure* or contingencies or causes beyond the reasonable control ofAscent, including but not limited to shortage of labor, fuel, raw material ormachinery, or fire, flood, Law, political action, acts of War, acts ofterrorism or acts of God (“**Force MajeureEvent**”).  To the extentAscent claims an inability to perform based on a Force Majeure Event, includingSatellite or Satellite Transponder failure, the Monthly Fee shall be reducedpro rata by the number of days during which Ascent has claimed an inability toperform.  If Ascent claims an inabilityto perform as a result of any Force Majeure event for a period of thirty (30)consecutive days, then OCV may terminate the Agreement pursuant to Section14.5(ii).

 

**Section 13.**                                   **Dispute Resolution.**

 

**13.1**                        **Informal Dispute Resolution**.  Prior to the initiation of any formal proceeding, the Partiesshall first attempt to resolve any dispute informally pursuant to this Section13.1.  Upon the written request of aParty, the other Party shall appoint a designated representative who does notdevote substantially all of his or her time to performance under thisAgreement, whose task it will be to meet for the purpose of endeavoring to resolvesuch dispute.   The following guidelinesshall apply:

 

**13.1.1**              The designated representatives shall meetas often as the Parties reasonably deem necessary in order to gather andfurnish to the other all information with respect to the matter in issue whichthe Parties believe to be appropriate and germane in connection with itsresolution.  The representatives shalldiscuss the problem and attempt to resolve the dispute without the necessity ofany formal proceeding.

 

**13.1.2**              During the course of discussion, allreasonable requests made by one Party to another for non-privilegedinformation, reasonably related to this Agreement, shall be honored in orderthat each of the Parties may be fully advised of the other’s position.

 

**13.1.3**              The specific format for the discussionsshall be left to the discretion of the designated representatives.

 

**13.1.4**              If the designated representatives fail toresolve the dispute, the Parties agree to escalate the dispute resolutionprocess up to a higher executive level, and then to the CEO level, providedthat the dispute shall not be escalated to any person that has a conflict ofinterest between the Parties.  Eachlevel of informal dispute resolution will be allowed no more than fifteen (15)days, unless otherwise mutually agreed by the Parties.

 

**13.2**                        **Formal Dispute Resolution**.  If the informal dispute resolutionprocedures described in the foregoing section do not resolve the dispute, theParties shall be free to seek a resolution of the dispute through a court ofcompetent jurisdiction or

 

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other manner consistent with the terms and conditionswith this Agreement, subject to Section 13.3 below.

 

**13.3**                        **Obligation to Continue Performing**.  At OCV’s option, Ascent shall continue toperform services under this Agreement pending resolution of the dispute,provided that (i) Ascent shall not be obligated to provide services for morethan a period of sixty (60) days after Ascent provides OCV with notice that itbelieves it is entitled or that it intends to terminate this Agreement pursuantto Section 14; and (ii) OCV is current and continues to timely pay Ascent forall services under this Agreement pursuant to Section 9, except that allamounts disputed under Section 9.2 shall also be paid as if undisputed,provided that Ascent shall return to OCV such disputed amounts that are laterdetermined by a court of competent jurisdiction to be due and payable to OCV.

 

**Section 14.**                                   **Termination.**

 

**14.1**                        **Termination for Cause**.  Either Party may terminate this Agreement inwhole but not in part (a) upon thirty (30) days prior written notice, if theother Party commits a material breach of this Agreement and, in the case of abreach capable of being cured, fails to cure such breach within such thirty day-periodafter receiving written notice detailing the particulars of such breach, or (b)upon prior written notice by the terminating Party if (i) the other Party filesa petition in bankruptcy or if such a petition is filed against such Party,(ii) the other Party takes advantage of any insolvency law, (iii) the otherParty makes an assignment for the benefit of creditors, (iv) a receiver,liquidator or trustee is appointed in respect of all or a substantial portionof the other Party’s property or affairs, or (v) the other party incurablybreaches a material term of this Agreement.

 

**14.2**                        **Termination for Failure to Pay**.  Without limitation of the provisions ofSection 14.1, Ascent may terminate this Agreement, in whole but not in part,upon written notice to OCV, if OCV fails to pay any amount due and payable bythe Payment Past Due Date after ten (10) days prior written notice by Ascent.

** **

**14.3**                        **Termination without Cause.**  Beginning one year from the Effective Date,OCV may terminate the Agreement, in whole but not in part, upon six (6) monthsprior written notice, for any reason. OCV’s compliance with Section 14.4 shall be its sole liability inconnection with termination pursuant to this Section 14.3.

 

**14.4**                        **Effect of Termination.**

 

**14.4.1**              **Expiration or Termination**.  Upon the expiration or termination of thisAgreement for any reason:

 

**(a)**                                  alllicenses granted herein shall immediately terminate;

 

**(b)**                                  eachParty shall return to the other all tangible materials embodying ConfidentialInformation of the other in its possession or control; and

 

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**(c)**                                  Ascentshall immediately comply with OCV’s instructions with respect to the transferof any Packages, Equipment, Content or licensed software in Ascent’spossession.

 

**14.4.2**              **EarlyTermination Fee**.  The partiesagree to the Early Termination Fee provision attached as Exhibit H andincorporated herein by reference.

 

Ascent shall use commercially reasonable efforts tomitigate its damages (including utilizing a satellite broker or seeking arelease from its obligations under the Satellite Access Agreement) and OCVshall be entitled to a reimbursement by Ascent of the Early Termination Feepaid (after taking into account Ascent’s costs and expenses incurred in itsmitigation efforts) to the extent that Ascent receives any payments or releasefrom payment obligations due to its mitigation efforts.  Other than OCV’s third-party indemnificationand confidentiality obligations, payment by OCV pursuant to this subsectionshall be Ascent’s sole remedy and OCV’s sole liability for any breach or earlytermination by OCV.

 

**14.5**                        **Repeated Service Failures**.  Notwithstanding any term to the contrary,OCV may terminate this Agreement upon 30 days’ prior written notice if any ofthe following circumstances occur: (i) in any consecutive two month period, OCVis entitled to a Service Credit equal to 50% of the Monthly Fee for each of thetwo months; or (ii) for any reason (including Satellite or SatelliteTransponder Failure or a Force Majeure Event), other than a reason which isOCV’s fault, the Content Distribution System is not operational for a period of30 consecutive days.  If OCV terminatesthis Agreement pursuant to this Section, then (x) OCV’s sole liability under this Agreement shall be payment of allamounts owing to Ascent but unpaid through the date of termination, (y) suchtermination shall be Ascent’s sole liability and OCV’s sole remedy inconnection with Ascent’s failure to meet its Content Distribution Servicesobligations under this Agreement, and (z) both parties’ third-partyindemnification and confidentiality obligations shall survive suchtermination.  Notwithstanding theforegoing, nothing in this subsection shall be construed, upon the occurrenceof the circumstances set forth above in 14.5(i), or (ii) to (aa) require OCV toterminate this Agreement pursuant to this subsection, (bb) limit OCV’s right toenforce the termination provision of its choice, or (cc) limit OCV’s remediesif OCV does not terminate the Agreement pursuant to this subsection.

 

**14.6**                        **Duty of Cooperation**.  Upon anticipated expiration or terminationof this Agreement for any reason, Ascent shall reasonably cooperate in thetransitioning of the Content Distribution Services provided under thisAgreement to another service provider. Such cooperation shall include reasonable telephonic assistance andtransfer of any documents and files in Ascent’s possession necessary for a newservice provider to perform the Content Distribution Services.  For assistance required after the effectivedate of termination or expiration of this Agreement,

 

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OCV shall reimburseAscent for its cost (as mutually agreed by the Parties) in providing suchassistance.

 

**Section 15.**                                   **Indemnification.**

 

**15.1**                        **Mutual Indemnification.**  Ascent and OCV agree to indemnify, defendand hold the other Party, its parent and affiliated entities, and the officers,directors, employees, partners, shareholders and agents of each of theforegoing, harmless from and against any and all Losses arising out of orcaused by (i) the breach of this Agreement by such Party, and (ii) anymisrepresentation by such Party with respect to or in connection with theContent or Services.

 

**15.2**                        **Indemnification by OCV**.  OCV agrees to indemnify, defend and holdAscent its parent and affiliated entities, and the officers, directors,employees, partners, shareholders and agents of each of the foregoing, harmlessfrom and against any and all Losses (a) arising out of or caused by the Contentor Equipment, including, without limitation, the alleged infringement orviolation of the Content of any Law or of the rights of any third party,including, but not limited to, breach of contract, defamation, obscenity andindecency laws, civil right, property right, right of privacy, right ofpublicity, copyright, trademark right, or other right of any person, firm orcorporation, and (b) associated with a claim by any owner or other provider ofany of the Content, by any Equipment owner or by any subscriber or end customerof OCV against Ascent that relates to or arises out of Ascent’s provision ofthe Services in compliance with this Agreement.

 

**15.3**                        **Exclusion**.  Neither Party shall have an obligation toindemnify the other Party, which seeks indemnification (the “**Indemnified Party**”), for any Losses claimedby the Indemnified Party arising out of, or that would not have arisen but forthe Indemnified Party’s: (i) breach of the Agreement; or (ii) negligence orwillful misconduct.

 

**15.4**                        **Indemnification by Ascent**.  Ascent agrees to indemnify, defend and holdOCV its parent and affiliated entities, and the officers, directors, employees,partners, shareholders and agents of each of the foregoing, harmless from andagainst any and all Losses arising out of the alleged infringement of anIntellectual Property Right of a third party by the equipment (other than theEquipment) used by Ascent to provide the Services.

 

**15.5**                        **Notice**.  Promptly after receipt of any notice of thecommencement or threatened commencement of any civil, criminal, administrative,or investigative action or proceeding involving a claim in respect of which theIndemnified Party will seek indemnification pursuant to this Agreement from theother Party (“**Indemnifying****Party**”), such Party shall notify theIndemnifying Party of such claim in writing. No failure to so notify the Indemnifying Party shall relieve it of itsobligations under this Agreement except to the extent that it can demonstrateactual damages attributable to such failure.  The Indemnifying Party may, at its option, undertake the defense of anysuch claim and permit the Indemnified Party to participate

 

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therein at its own expense.  The settlement of any such claim by the Indemnified Party withoutthe Indemnifying Party’s prior written consent (which shall not be unreasonablywithheld) shall release the Indemnifying Party from its obligations hereunderwith respect to the claim so settled.

 

**Section 16.**                                   **Disclaimer of Damages.**

 

**16.1**                        **Limitation of Liability**. The parties agree to the Limitation of Liability provision attachedhereto as Exhibit G and incorporated herein by reference.

** **

**16.2**                        **Ascent Disclaimer**. Provided that Ascent has complied with its obligations under this Agreement,Ascent shall not be liable or responsible for (i) any interception, or damagescaused by interception of a scrambled signal, and (ii) any Content outside thepoints where such signal enters into or departs from Ascent’s ContentDistribution System.

 

**Section 17.**                                   **Confidentiality.**

 

The Parties agree that they are bound by the terms of the MutualNondisclosure Agreement, dated August 23, 2002, by and between Ascent (underits former name, Liberty Livewire Corporation) and On Command Corporationattached hereto as Exhibit D (the “**NDA**”). The Parties agree that the terms andconditions of the NDA shall be incorporated by reference and form part of thisAgreement. If there is a conflict between this Agreement and the NDA, the NDAshall take priority with regard to the creation, maintenance, use andprotection of Confidential Information (as defined in the NDA) to the extent ofthe conflict. Notwithstanding the foregoing, the Parties agree that the term ofthe NDA shall automatically extend through the Term of this Agreement.

 

**Section 18.**                                   **General Provisions**

 

**18.1**                        **Survival**.  Sections 1 (Definitions), 11 (IntellectualProperty), 10.4 (Insurance), 14.4 (Effect of Termination), 15(Indemnification), 16 (Disclaimer of Damages), 17 (Confidentiality), and 18(General Provisions) shall survive the expiration or termination of thisAgreement for any reason.

 

**18.2**                        **Assignment**.  This Agreement shall not be assignablewithout the consent of the other Party (such consent not to be unreasonablywithheld or delayed), except that no consent shall be required in connectionwith assignment of the Agreement to any entity controlling, controlled by orunder common control with such party or in connection with the merger,consolidation, sale, or other transfer of all or substantially all the businessand/or assets of OCV or of that part of the OCV’s business used in theperformance of this Agreement. Unauthorized assignment shall be void. This Agreement shall be binding upon and shall inure to the benefit ofthe Parties’ authorized successors and assigns.  Except as expressly provided herein or upon OCV’s prior writtenconsent, Ascent may not subcontract any portion of the Services.

 

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**18.3**                        **Release Of Information**.  Neither Ascent nor OCV shall publiclyannounce or disclose the terms and conditions of this Agreement, or advertiseor release any publicity regarding this Agreement, without the prior writtenconsent of the other Party, except that either Party may disclose the terms ofthis Agreement to bona fide potential investors who have executed an agreementwith such Party prohibiting further disclosure or use of any such disclosedterms in connection with evaluating an investment in such Party.  This provision shall survive the expiration,termination or cancellation of this Agreement. Notwithstanding the foregoing, the Parties shall use commerciallyreasonable efforts to issue a joint press release regarding the servicesprovided hereunder immediately after the execution of this Agreement, and aftersuch joint press release, either Party may state, in the normal course of itsbusiness, that it does business with the other Party and the general nature ofsuch business and that the Parties have entered into this Agreement and the natureof the services.

 

**18.4**                        **Modification**.  No representations or statements of any kindmade by a representative of a Party, which are not stated herein, shall bebinding on the Party unless made in writing and signed by a duly authorizedrepresentative of such Party.

** **

**18.5**                        **Relationship of Parties**.  The Parties are independent contractors andnothing in this Agreement shall be construed as creating any agency,partnership, or other form of joint enterprise between the Parties.  Neither Party will have the authority to actor create any binding obligation on behalf of the other Party.

** **

**18.6**                        **Notices**.  All notices required or permitted under thisAgreement will be in writing and will be deemed delivered (a) when actuallydelivered if delivered in person, (b) one (1) day after being deposited in arecognized express, overnight delivery service, (c) when actually received ifreceived by confirmed facsimile and such facsimile transmission is followed bya mailed copy, or (d) three (3) days after being deposited in the United Statesmail service, postage prepaid, addressed to the Party as follows: 

 

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| If to OCV:  On Command Corporation  4610 S. Ulster  6th Floor  Denver, CO 80237  Facsimile: 720-873-3433  Attention: Tom Lambrecht*with a  copy to:*On Command Corporation  4610 S. Ulster  6th Floor  Denver, CO 80237  Facsimile 720-873-3397  Attention: Pamela Strauss, Esq. |   | If to Ascent:  Ascent Media Group, Inc.  520 Broadway, 5th Floor  Santa Monica, CA  90401  Facsimile:  310-434-7006  Attention:  José A. Royo*with a  copy to:*Ascent Media Group, Inc.  520 Broadway, 5th Floor  Santa Monica, CA  90401  Facsimile:  310-434-7005  Attention:  Legal Department |
|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

Either Party may change its address for noticepurposes by notifying the other Party in accordance with this Section 18.6.

 

**18.7**                        **Governing Law**.  This Agreement shall be governed by andconstrued in accordance with the laws of the State of California, withoutreference to its conflict of laws principles.

** **

**18.8**                        **Entire Agreement**.  This Agreement, including its Exhibits,constitutes the entire agreement between the Parties with respect to thesubject matter hereof, and supersedes any prior or contemporaneous written ororal agreements or understandings between the Parties with respect to thesubject matter hereof.  No amendment ormodification to this Agreement will be effective unless made in writing andsigned by both Parties.  In the event ofany conflict between the terms hereof and those in any exhibits (except for ExhibitA, which is a stand-alone agreement and is not incorporated herein) hereto,the terms of this Agreement shall control unless expressly stated otherwise inthis Agreement.

 

**18.9**                        **Waiver**.  Failure by either Party to exercise anyrights under this Agreement in any one or more instances will not constitute awaiver of such rights in any other instance. Waiver by a Party of any default under this Agreement will not be deemeda waiver of any other default.

 

**18.10**                 **Severability**.  If any provision of this Agreement shall be declared illegal,invalid or unenforceable, in whole or in part, by a court of competentjurisdiction, all other provisions of this Agreement shall remain in full forceand effect.

 

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**18.11**                 **Laws**. Nothing contained in this Agreement shall be construed so as to requirethe commission of any act contrary to Law, and wherever there is any conflictbetween any provision of this Agreement and any Law, such Law shall prevail;provided, however, that in such event the provision(s) of this Agreement soaffected shall be curtailed and limited only to the extent necessary to permitcompliance with the minimum legal requirement, no other provisions of thisAgreement shall be affected thereby and all of such other provisions shallcontinue in full force and effect.

 

**18.12**                 **No Third Party Beneficiaries**.  The provisions of this Agreement are onlyfor the benefit of the Parties hereto, and no third party may seek to enforceor benefit from such provisions.

 

**18.13**                 **Costs**. Any costs incurred by either Party in enforcing this Agreement shall beborne by the nonprevailing party.

 

**18.14**                 **Headings**.  Headings used in this Agreement are for convenience of referenceonly and shall not be used to interpret any aspect of this Agreement.

 

**18.15**                 **Counterparts**. This Agreement may beexecuted in counterparts, each of which will be considered an original, and allof which together will constitute one and the same instrument.

 

**18.16**                 **Drafting**.  Neither Party shall be deemed to be thedrafter of this Agreement, so that this Agreement shall not be construedagainst either Party on the basis that such Party was the drafter thereof.

 

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**IN WITNESS WHEREOF**, duly authorizedrepresentatives of the undersigned Parties have executed this Agreement, to beeffective as of the Effective Date.

 

 
|   | **Ascent Media Group, Inc.**     |
|--------|----------------------------------|
|   |                             |   |
|   |                             |   |
|   | **By:**                          |   | **/s/ Richard C. Fickle** |
|   |                             | **Richard C. Fickle** |
|   |                             | **Executive Vice President** |
|   |                             |   |
|   |                             |   |
|   | **On Command Video Corporation** |
|   |                             |   |
|   |                             |   |
|   | **By:**                          |   | **/s/ Laurence M. Smith** |
|   |                             | **Laurence M. Smith** |
|   |                             | **Senior Vice President,** |
|   |                             | **Sales and Distribution** |

 

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