Fifth Mirror Service i. Notwithstanding anything to the contrary herein, the Fifth Mirror Service shall be deemed to be part of the Service for the purposes of the Test License Agreement, only to the extent that: (1) RES is solely responsible for, and in control of, all VOD-based commerce (including without limitation, web services, XML feeds and other back-end functionality) on such Fifth Mirror Service, except that RIM may provide billing and customer service activities; (2) the Fifth Mirror Service continues to contain RES branding (e.g., “powered by Rovi” branding”); (3) RES ensures that financial, commercial, and legal terms of the Test License Agreement are not disclosed to the Fifth Mirror Service (other than as they relate to the RIM Guarantee), except as may be required in connection with the fulfillment by RES of contractual obligations with respect to the Fifth Mirror Service; (4) nothing contained herein shall prevent CDD from entering into a direct relationship with RIM with respect to the VOD rights at any time and if there is an execution of such direct agreement between CDD and RIM, this Amendment will automatically terminate with respect to the Fifth Mirror Service upon RES’s subsequent receipt of written notice from CDD that CDD has executed a direct agreement with RIM, and all unrecouped amounts of the RIM Guarantee shall be credited to RIM under such direct agreement (with RIM being a third party beneficiary to this clause); and (5) all VOD audio-visual content on the non-Fifth Mirror Service portion of the Service is also available on the Fifth Mirror Service to the extent approved by RIM.
Fifth Mirror Service. Notwithstanding anything to the contrary herein, the Fifth Mirror Service shall be deemed to be part of the Service for the purposes of the Test License Agreement, only to the extent that: (1) RoxioNow is solely responsible for, and in control of, all VOD-based commerce (including without limitation, web services, XML feeds and other back-end functionality) on such Fifth Mirror Service, except that Asus may provide billing and customer service activities; (2) the Fifth Mirror Service continues to contain RoxioNow branding; (3) RoxioNow ensures that financial, commercial, and legal terms of the Test License Agreement are not disclosed to the Fifth Mirror Service, except as may be required in connection with the fulfillment by XxxxxXxx of contractual obligations with respect to the Fifth Mirror Service; (4) nothing contained herein shall prevent CDD from entering into a direct relationship with Asus with respect to the VOD rights at any time and if there is an execution of such direct agreement between CDD and Asus, this Amendment will automatically terminate with respect to the Fifth Mirror Service upon XxxxxXxx’s subsequent receipt of written notice from CDD that CDD has executed a direct agreement with Asus; and (5) all VOD audio-visual content on the non-Fifth Mirror Service portion of the Service is also available on the Fifth Mirror Service. CDD may enter, at its discretion, into direct conversations with Asus regarding any marketing and/or promotional activities that CDD offers RoxioNow and other VOD distributors in the Territory and which CDD wants to offer to Asus for the Fifth Mirror Service. RoxioNow shall pay CDD for all Included Programs distributed via the Fifth Mirror Service in the same amount and manner as provided for in the Test License Agreement, provided, however, that neither RoxioNow nor Asus shall pay any additional minimum guarantees, advance payments or similar payments to CDD. The rights granted to XxxxxXxx hereunder shall be coterminous with those granted to RoxioNow pursuant to the Test License Agreement and for the same Territory set forth in the Test License Agreement. The following language shall be added as a new fifth sentence to Section 16.4 of the Test License Agreement: “The use and distribution of Included Programs in connection with the Fifth Mirror Service shall be only as specifically allowed by this Agreement RoxioNow shall ensure that any and all Fifth Mirror Service-related use and distribution of Included Programs...
