THESE BBTV FAST PAY TERMS AND CONDITIONS (THE “FAST PAY TERMS”) ONLY APPLY TO YOU (“YOU”) IF YOU ARE A PARTY TO A CONTENT PROVIDER AGREEMENT (“CPA”) WITH BROADBANDTV CORP. (“BBTV”).
BY ACCEPTING THE BBTV FAST PAY PROGRAM THROUGH YOUR VISO ACCOUNT OR THROUGH YOUR BBTV ACCOUNT REPRESENTATIVE, YOU ARE THEREBY AGREEING TO AMEND YOUR CPA, AND YOUR CPA WILL BE AMENDED THEREBY, IN ACCORDANCE WITH THESE FAST PAY TERMS (THE “FAY PAY AMENDMENT”).
1. Definitions. Except where specifically indicated herein, all capitalized terms used in these Fast Pay Terms are as defined in the CPA (as applicable). In addition to the terms defined elsewhere in these Fast Pay Term, the terms below are defined as follows:
“Early Payment Amount” means, with respect to an Earnings Month, an amount equal to the amount that the Regular Payment Amount would be for such Earnings Month based on the Estimate for such Earnings Month less the Early Payment Fee.
“Early Payment Fee” means, with respect to an Earnings Month, and in consideration for the early payment of Your Google Earnings Revenue pursuant to these Fast Pay Terms, 2% of an amount that the Regular Payment Amount would be for such Earnings Month based on the Estimate for such Earnings Month.
“Earnings Month” means a month in which You are entitled to be paid a Regular Payment Amount pursuant to the CPA.
“Estimate” means, with respect to an Earnings Month, the estimate provided to BBTV by Google at the beginning of such Earnings Month of what the Google Earnings Revenue will be for such Earnings Month.
“Google Earnings Revenue” means, with respect to an Earnings Month, the Google Net Revenue earned and Received by BBTV from Your Content in such Earnings Month.
“Regular Payment Amount” means the amount equal to a specified percentage of Google Net Revenue earned and received by BBTV in a month from Your Content which You are entitled to be paid by BBTV pursuant to the CPA.
2. Early Payment. BBTV shall pay You, on or before the 15th day of each Earnings Month, an amount equal to the Early Payment Amount for such Earnings Month (such payment being hereinafter referred to as the “Early Payment”); provided that in the case of the first Early Payment under this Fast Pay Amendment, the payment date shall be on or before the later of the 15th day of the Earnings Month and the third (3rd) business day following the date that BBTV received Your acceptance of these Fast Pay Terms.
3. Early Payment Fee. BBTV shall be entitled to withhold and retain the Early Payment Fee from any other amounts otherwise payable to You under the CPA, including Your Revenue, as an early payment fee.
4. Manner of Payment. Each Early Payment Amount shall be paid to You via the same payment method BBTV currently pays Your Revenue to You under the CPA.
5. Calculation of Google Net Revenue. Provided that BBTV has paid the Early Payment Amount for an Earnings Month in accordance with these Fast Pay Terms, then for purposes of calculating Your Revenue under the CPA for such Earnings Month, there shall be deducted an amount equal to the total of the Early Payment Amount plus the Early Payment Fee. In the event that such deduction results in a shortfall, such shortfall shall be recovered by BBTV from all other revenues otherwise payable by BBTV to You under the CPA in the Earnings Month and, if necessary, in all months following the Earnings Month, until the shortfall has been fully recovered by BBTV.
6. Termination. BBTV may terminate this Fast Pay Amendment upon two (2) days’ written notice to You at any time for any reason, and You may terminate this Fast Pay Amendment upon thirty (30) days’ written notice to BBTV at any time for any reason, provided that in each case, Section 5 hereof, and the definitions of all defined terms contained therein, shall survive such termination.
7. DISCLAIMER AND WAIVER. THIS FAST PAY AMENDMENT AND THE EARLY PAYMENTS SHALL NOT BE VIEWED AS A FINANCIAL SERVICE OF ANY KIND, AND YOU HEREBY IRREVOCABLY COVENANT AND AGREE FOR YOU AND YOUR RESPECTIVE AGENTS AND REPRESENTATIVES NOT TO BRING, ASSERT, OR OTHERWISE PARTICIPATE IN ANY LITIGATION, (WHETHER BY JURY, A CLASS ACTION, OR OTHERWISE) INVOLVING OR ASSERTING ANY CLAIM BASED UPON THE CLAIM OR CHARACTERIZATION THAT ANY EARLY PAYMENT AMOUNT CONSTITUTES A LOAN OR DEBT OF ANY KIND OR THAT ANY EARLY PAYMENT, OR THIS FAST PAY AMENDMENT, CONSTITUTES A FINANCIAL SERVICE OF ANY KIND.
(a) Independent Legal Advice. YOU represent and warrant that YOU haVE had the opportunity to review THESE FAST PAY TERMS before aGREEING TO BBTV’S FAST PAY PROGRAM and that YOU haVE obtained legal counsel, FINANCIAL, or ANY other professional advice or that YOU haVE deliberately refrained from doing so without any advice or pressure from BBTV.
(b) CPA in full force and effect. Except as specifically amended and modified by these Fast Pay Terms, the CPA will remain in full force and effect, unamended, and all unamended and unmodified terms and conditions thereof shall apply to these Fast Pay Terms to the same extent as if these Fast Pay Terms were incorporated directly therein.
(c) Entire Agreement. This Fast Pay Amendment, which has been accepted by You, forms the entire contract between BBTV and You in respect of BBTV’s Fast Pay program.