EX-10.30
2
ex10-30.htm
LICENSE AGREEMENT WITH IN DEMAND L.L.C.
Exhibit
10.30
LICENSE
AGREEMENT
THIS
AGREEMENT, dated as of February 6, 2007, is between NUTECH DIGITAL, INC.
(“Licensor”), and iN DEMAND L.L.C. (“Licensee”).
The
Deal
Terms set forth below, the Standard Terms and Conditions attached hereto as
Exhibit A, and the Delivery Information attached hereto as Exhibits B, C and
D,
are referred to collectively herein as the “Agreement”. All references to the
Agreement shall be deemed to include all of the foregoing. Except as expressly
set forth in these Deal Terms, in the event of a conflict between any provision
of the Deal Terms and any provision of the Standard Terms and Conditions, the
terms of the Deal Terms shall govern to the extent of any such
conflict.
In
consideration of the mutual promises herein contained and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
DEAL
TERMS
|
1.
|
Program:
“Program” shall mean the programs set forth below. Each Program shall be
of first class production quality and shall be designed to reach
the
widest possible audience.
|
Program
1 “Xxxxxxx
Xxxxxxx: Reality Tour Live”
Program
2 “Xxx
Xxx: Live at the House of Blues”
Program
3 “D12:
Live in Chicago”
|
3.
|
Running
Time:
With respect to Program 1, 88 minutes; Program 2, 58 minutes; and
Program
3, 118 minutes.
|
|
4.
|
Ratings
and Content Advisories:
With respect to Program 1, TV-G and with respect to Programs 2 and
3,
TV-14, L.
|
|
5.
|
SD
Rights:
With respect to each Program, exclusive rights to authorize the Exhibition
of the standard definition “SD” version of such Program through Affiliated
Systems during the License Period within the Territory on (i) a
Pay-Per-View Basis and (ii) as part of an SVOD Package. With respect
to
each Program, Licensor may authorize a third party that is not an
Affiliated System to Exhibit the version(s) of such Program made
available
to Licensee hereunder by means of Non-Standard Television (other
than the
Internet) on a Pay-Per-View Basis during such Program’s License Period.
|
|
6.
|
HD
Rights:
With respect to each Program, the non-exclusive rights and license
under
copyright to Exhibit the HD version of such Program as part of Licensee’s
HD offering by any means or media, including, without limitation,
on the
HD Service, without limitation as to the number of Exhibitions
thereof.
|
|
7.
|
License
Period:
With respect to each Program, 2 years commencing with its initial
Exhibition hereunder.
|
|
8.
|
Number
of Exhibitions:
Unlimited.
|
|
9.
|
Territory:
The United States of America and its commonwealths, territories and
possessions (including, without limitation, the U.S. Virgin Islands,
Puerto Rico, Guam and Saipan), Canada, the Bahamas, Bermuda, Jamaica,
the
Cayman Islands, Curacao, the Netherlands Antilles (including, without
limitation, St. Maarten), the Dominican
Republic, Anguilla and
the West Indies; provided that the Territory with respect to Exhibition
via any means or media other than traditional cable television shall
be
the world in its entirety.
|
|
10.
|
Exhibition
Holdback Date:
With respect to each version of the Program, the end of the License
Period
therefor.
|
|
11.
|
Promotion
Holdback Date:
With respect to each version of the Program, the end of the License
Period
therefor.
|
|
12.
|
Delivery
Date:
With respect to Program 1, 3/15/07; Program 2, 4/15/07; and Program
3,
5/15/07.
|
|
13.
|
Delivery:
With respect to each Program, not later than the Delivery Date therefor,
Licensor shall deliver to Licensee a taped, closed-captioned,
post-produced version of (i) the SD version of such Program as provided
in
the Standard Terms and Conditions and Exhibits B hereto and (ii)
the HD
version of such Program as provided in the Standard Terms and Conditions
and Exhibit C hereto.
|
|
14.
|
SD
Suggested Retail Price (“SRP”):
With respect to Programs 1 and 3, $9.95; and with respect to Program
2,
$6.95.
|
|
15.
|
SD
License Fee Payable to Licensor:
With respect to each Program, subject to the Standard Terms and
Conditions, the License Fee for such Program shall payable as
follows:
|
(a) With
respect to each Program Exhibited on a Pay-Per-View Basis, the License Fee
for
such Program shall equal the greater of 25% of (i) Gross Receipts for such
Program and (ii) the SRP for such Program.
(b) With
respect to each Program Exhibited as part of the SVOD Package, subject to the
Standard Terms and Conditions, the monthly License Fee for each “flight” (i.e.,
each time a Program is scheduled as part of the SVOD Package, which scheduling
Licensee anticipates will be approximately five weeks) of such Program shall
equal the product of (i) $.05 cents x (ii) the number of hours, rounded to
the
nearest quarter hour, of each Program Exhibited during such Program’s first
month of Exhibition of each “flight” x (iii) the number of Subscribers to such
SVOD Package during such first month of Exhibition. The number of Subscribers
each month shall be calculated by adding the number of Subscribers on the first
and last days of a month and dividing by two (2).
Notwithstanding
the foregoing, with respect to each Program, no License Fee shall be payable
to
Licensor until (A) the execution and delivery of this Agreement, and (B)
delivery by Licensor of a
certified copy of the endorsement of insurance (satisfactory
in form and substance to Licensee) covering
the perils as set forth in these Deal Terms.
|
16.
|
SD
Payment Terms:
With respect to each Program, subject to the Standard Terms and
Conditions, the date five (5) business days after the end of each
Accounting Period therefor. “Accounting Period” shall mean, with respect
to each Program,: (a) a period commencing on the date on which such
Program is first Exhibited on a Pay-Per-View Basis hereunder and
ending on
the date sixty (60) days thereafter (or, if such date is not the
last day
of a calendar month, the last day of the calendar month in which
such date
occurs); and (b) each calendar month thereafter for so long as there
are
monies due and owing Licensor
hereunder.
|
|
17.
|
HD
License Fee:
The parties acknowledge that the HD rights and licenses herein granted
have been granted for good and valuable consideration (the receipt
and
sufficiency of which are hereby acknowledged), and that no further
amount
shall be payable by Licensee for such rights and licenses or their
exercise.
|
|
18.
|
Sponsorship:
Licensor will inform personnel that they cannot wear production T-shirts
and jackets during any Program that bear the name or logo of other
media
(including Internet) entities, such as HDNET, HBO, FOX, ABC, SET
and ESPN.
No sponsorship (including billboards and signage) is permitted in
conjunction with any Program without Licensee’s prior written approval
(exercisable in Licensee’s sole discretion). Licensee shall have the right
to associate a sponsor with the Exhibition of each
Program.
|
|
19.
|
Merchandise:
No merchandising is permitted in conjunction with any Program without
Licensee’s prior written approval (exercisable in Licensee’s sole
discretion).
|
|
20.
|
Vignettes:
Licensee shall have the right to create vignettes using HD footage
from
each Program, for Exhibition by any HD means or media (the “Vignettes”).
The Vignettes may be presented as “INHD Flashback Moments” (or similar
identifier). Further,
Licensee shall have the right to Exhibit as Vignettes each song (in
whole
or in part) contained in each Program on an HD, standard definition,
linear and/or VOD Basis (each, a “Vignette”). The Vignettes may be
presented as part of such Program, the “INHD Concert Jukebox” (or such
other name as Licensee, in its sole discretion, may elect) and any
other
programming exhibited, or authorized to be exhibited, by Licensee.
There
shall be no additional License Fee for the
Vignettes.
|
|
21.
|
Late
Fees and Other Costs.
In the event Licensor makes any changes in any Program or its promotion
(including cancellation), Licensor is responsible for all costs associated
with these delays and/or changes including but not limited to editing,
audio, communications (e.g.,
telecopies) and delivery of material, and shall pay to Licensee an
amount
equal to such costs not later than fifteen (15) days after Licensee’s
delivery of documentation evidencing such costs. Notwithstanding
anything
herein to the contrary and without in any way limiting Licensee’s rights
and remedies hereunder or otherwise including, without limitation,
an
action at law to recover damages if any Program is cancelled by or
on
behalf of Licensor or any performer for any reason, within thirty
(30)
days of such cancellation, Licensor will remit to Licensee the sum
of
$25,000, together with an amount equal to all amounts paid by Licensee
for
the marketing and promotion of such Program (such aggregate amount
being
herein referred to as the “Cancellation
Fee”).
|
|
22.
|
Insurance
Requirements:
With respect to each Program, Licensor shall procure and maintain
in full
force and effect standard producer’s liability (errors and omissions)
insurance covering such Program throughout the Territory with minimum
limits applicable only to such Program of at least One Million Dollars
($1,000,000) for any claim arising out of a single occurrence and
Three
Million Dollars ($3,000,000) for all claims in the aggregate, which
insurance shall include title coverage for such Program and shall
be
written on either: (A) an occurrence basis, in which event it shall
remain
in full force and effect until the end of the License Period for
such
Program and may not be permitted to lapse, or (B) a claims-made basis,
in
which event it shall remain in full force and effect until the end
of the
License Period for such Program, shall cover any claims made at any
time
until the end of such License Period and shall include an extended
reporting period of no less than one year after the expiration of
such
License Period and may not be permitted to lapse; and (b) such other
insurance coverage as is customary for live events, covering such
Program
throughout the Territory,
including (without limitation): (i) life, accident, and other insurance
covering the failure of each and any performer to perform during
such
Program,
which insurance shall be sufficient to make Licensee whole for any
and all
costs, expenses and damages incurred by Licensee in connection with
each
and any performer’s failure to perform during such
Program;
and (ii) workers’ compensation insurance; and (iii) public liability
insurance for bodily injuries and property damage (including coverage
for
owned and hired vehicle liability and relating to use of the venue)
with
minimum limits of at least $1,000,000 per occurrence and $2,000,000
in the
aggregate.
|
Each
such
insurance policy: (a) shall be issued by a nationally recognized insurance
carrier acceptable to Licensee; (b) may not be cancelled without sixty (60)
days
prior written notice to Licensee; (c) shall not carry a deductible larger than
Ten Thousand Dollars ($10,000); (d) shall name as an additional insured “iN
Demand L.L.C. and each member therein and division thereof, and their respective
parents, subsidiary and affiliated divisions and companies, distributors,
licensees and permitted assigns, and the respective shareholders, directors,
officers, employees and agents of the foregoing”; (e) shall name Licensor as a
named insured or as an additional insured; and (f) shall be primary and not
contributing to or in excess of any such insurance maintained by Licensee or
its
members or affiliates for the benefit of Licensee.
|
23.
|
Notices:
All notices, statements, and other documents re-quired to be given
in
writing shall be by personal (or messenger) delivery, by registered
or
certified mail or by electronic means (except as herein otherwise
expressly pro-vided) and shall be addressed as provided below (or
such other addresses as may be designated in writing by either
party).
Notice given by personal (or messenger) delivery, by registered
or
certified mail or by electronic means shall be deemed given upon
receipt.
|
| Licensee: | Licensor: |
|
iN Demand L.L.C.
000 Xxxxxx Xxxxxx, 00xx
Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Senior Vice President,
Business Affairs
and General Counsel
|
NuTech
Digital, Inc.
0000
Xxxxxxxxxxx Xxxxx
Xxxxxx,
XX 00000
Attn:
Xxx Xxxxxx
|
|
With
a separately delivered copy to:
Attn:
Senior Vice President,
Programming
| |
|
24.
|
General:
Capitalized terms not otherwise defined in these Deal Terms shall
have the
respective meanings assigned thereto in the Standard Terms and Conditions.
Exhibits A, B, C and D attached hereto are hereby incorporated herein
and
made a part hereof. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but
all of
which together shall constitute one and the same
instrument.
|
Please
confirm Licensor’s agreement with the above by obtaining the appropriate
signature and returning both copies of this Agreement for
countersignature.
NUTECH
DIGITAL, INC. iN
DEMAND
L.L.C.
By: /s/
Xxx Xxxxxx
By:
/s/ Xxxxxxx X. Xxxxxx
Title: President/CEO
Title:
Senior Vice President
Date:
2/21/2007
Date:
2/22/2007
EXHIBIT
A
to
Agreement
dated as of February 6, 2007
by
and
between NUTECH DIGITAL, INC. (“Licensor”)
and
iN
DEMAND L.L.C. (“Licensee”)
Standard
Terms and Conditions
1. DEFINITIONS
In
addition to the words, terms and phrases defined elsewhere in this Agreement,
the words, terms and phrases (and variations thereof) defined in this Section
1
shall, for the purposes of this Agreement, have the meanings ascribed to them
below.
(a) Accounting
Statement
shall
have the meaning assigned to such term in Section 3(b) of these Standard Terms
and Conditions.
(b) Affiliated
Systems
shall
mean, with respect to each Program, the systems and other entities affiliated
with Licensee (including, without limitation, those systems and other entities
that affiliate with Licensee on an event-by-event basis) that distribute such
Program by means of Non-Standard Television on a Pay-Per-View Basis and/or
as
part of an SVOD Package.
(c) Exhibition
shall
mean distribution, transmission, display, exhibition, exploitation, projection
or performance, and Exhibit
shall
mean to cause the Exhibition.
(d) Gross
Receipts
shall
mean, with respect to each Program, all monies actually received by the
Affiliated Systems for each SD viewing of such Program by Program Subscribers
on
a Pay-Per-View Basis pursuant to the rights herein granted, less applicable
sales, use and seat taxes, and any Program Taxes. Gross Receipts shall be,
at
all times, subject to retroactive adjustment for refunds, credits, settlements,
allowances, rebates, corrections and other similar purposes. Such retroactive
adjustments may be implemented by Licensee’s withholding appropriate amounts
from such License Fees as become payable pursuant to subsequent Accounting
Statements for such Program following the relevant retroactive adjustment.
All
overpayments not recovered from amounts otherwise payable for the month in
which
such matters are first reflected in an Accounting Statement may be carried
forward or backward (at Licensee’s election) and/or, at Licensee’s election,
Licensor shall make immediate payment to Licensee of any amounts shown to be
due
to Licensee.
(e) HD
Service
shall
mean a program service owned or operated, directly or indirectly, by Licensee
or
its permitted successors and assigns, without regard to the number of channels
of each such service, which service may be advertiser-supported or
-underwritten. In addition, the Service may include offerings from which
programming can be viewed on a VOD Basis.
(f) Home
Video Devices
shall
mean videocassettes and videodiscs that, as sold or rented, themselves
physically embody (without need for further transfer of data or further
activation or other authorization from outside the home into the home) a motion
picture or other programming for exhibition by means of a playback device which
causes a visual image to be seen on the screen of a television receiver, which
cassettes and discs are intended for sale or rental to the general public for
use in the home and are physically transported to the home. No electronic or
other non-tangible transmission of programming to the home from a source outside
the home for taping, recording or other storage on tape, disc, or any other
means of data retention for subsequent replay shall constitute the Exhibition
of
such programming by means of Home Video Devices, nor shall an Exhibition of
programming in the home that requires activation or authorization from outside
the home constitute the Exhibition of such programming by means of Home Video
Devices.
(g) Non-Standard
Television
shall
mean any and all forms of Exhibition, whether now existing or developed in
the
future, by any means or media. Non-Standard Television shall include, without
limitation, Exhibition by means of cable, wire or fibre of any material,
wireless, over-the-air pay or STV in any frequency band, any and all forms
of
electronic or other non-tangible transmission (including, without limitation,
the Internet) for Exhibition or for taping, recording or other storage on tape,
disc or any other means of data retention for subsequent exhibition (whether
by
the Internet or any other electronic or non-tangible distribution medium),
master antenna, satellite master antenna, low power transmission, high
definition transmission, closed-circuit transmission, radio (for purposes of
simulcast only, and whether delivered by standard radio broadcast or otherwise),
tape, cassette and disc delivery (but excluding distribution of Home Video
Devices), single and multi-channel multi-point distribution service and
satellite transmission directly to TVROs, all on a subscription, pay-per-view,
license, rental, sale or any other basis.
(h) Pay-Per-View
Basis
shall
mean the mode of Exhibition of a Program by means of Non-Standard Television
in
which a Subscriber elects to view such Program (alone or in combination with
other programming) and is charged a fee for such viewing (which fee may be
in
payment for multiple exhibitions of such Program (and/or combination of
programming, as the case may be)), regardless of whether any such Exhibition
occurs at a regularly scheduled time, or on a VOD Basis. Notwithstanding the
foregoing, Pay-Per-View
Basis
shall
also include: (i) the mode of Exhibition of a Program by means of Non-Standard
Television in which a person employed by an Affiliated System elects to view
such Program (alone or in combination with other programming) in the course
of
such person’s employment, but is not charged a fee for such viewing; and (ii)
the mode of Exhibition of a Program by means of Non-Standard Television in
which
a Subscriber elects to view such Program but is not charged a fee for such
viewing on a limited promotional basis, provided, that such Exhibition does
not
occur on a service that is made available on a periodic basis of more than
twenty-four (24) hours.
(i) Person
shall
mean any natural person, corporation, partnership, joint venture, association,
trust, governmental agency or any other entity whatsoever.
(j) Program
Subscriber
shall
mean, with respect to each Program, a Subscriber that elects to view such
Program on a Pay-Per-View Basis as authorized by Licensee or the applicable
Affiliated System, and receives and pays for such viewing.
(k) Program
Taxes
shall
have the meaning set forth in Section 3(d) of these Standard Terms and
Conditions.
(l) Physical
Materials
shall
have the meaning assigned to such term in Section 4 of these Standard Terms
and
Conditions.
(m) Related
Agreement
shall
have the meaning assigned to such term in Section 3(e) of these Standard Terms
and Conditions
(n) SD
License Fee
shall
mean, with respect to each Program, the license fee set forth with respect
to
such Program in the Deal Terms and payable in accordance with Section 3 of
these
Standard Terms and Conditions.
(o) Studio
shall
mean Licensee’s playback and uplink facilities at the Comcast Media Centers in
Littleton, Colorado, or such other facility as Licensee shall
designate.
(p) Subscriber
shall
mean an individual customer of Licensee or of an Affiliated System acting with
the authorization of Licensee.
(q) SVOD
Basis
shall
mean the mode of Exhibition of a group of programs offered to Subscribers where,
for a fixed fee, the Subscriber can watch a selection of all or a portion of
such Programs with “on demand” functionality over a set period of time as often
as desired on a subscription basis.
(r) SVOD
Package
shall
mean a package in which a Subscriber elects to view programming on a SVOD
Basis.
(s) Transfer
House
shall
mean such professional video transfer house or houses as Licensee shall
designate; provided, however, that in the absence of such designation the
Transfer House shall be the Studio.
(t) Video
Reproductions
shall
have the meaning assigned to such term in Section 4 of these Standard Terms
and
Conditions.
(u) VOD
Basis
shall
mean the mode of Exhibition of a Program in which a Subscriber elects to view
such Program, which Exhibition occurs on an “on demand basis” (i.e.,
at a
time or times of such individuals’ choosing, which time or times are
not
regularly scheduled).
2. LICENSE
(a) Exhibition.
(i) Licensor
hereby grants to Licensee, with respect to each Program, the exclusive rights
and license under copyright to (A) authorize the Exhibition of such Program
by
and through Affiliated Systems throughout the Territory during its License
Period by means of Non-Standard Television on a Pay-Per-View Basis and/or an
SVOD Package, without limitation as to the number of Exhibitions thereof, and
(B) Exhibit the HD version of such Program throughout the Territory during
its
License Period, without limitation as to the number of Exhibitions
thereof.
(ii) Without
derogating from Licensee’s rights and remedies hereunder or otherwise, the
parties acknowledge and agree that: (A) Licensee shall have the right to reject
any Program at any time if such Program does not conform to the running time
and/or rating and content advisories set forth in the Deal Terms and/or to
the
other applicable provisions of the Deal Terms; and (B) Licensee and/or each
Affiliated Systems shall have the right to reject such Program at any time
if,
in their respective judgment: (I) such Program fails to conform to community
standards; (II) if any performer or participant therein fails or has failed
to
conduct himself or herself, as the case may be, with due regard to social
conventions or public morals or decency; and/or (III) if any performer or
participant therein commits or has committed any act which degrades such
performer or participant or brings such performer or participant into public
disrepute, contempt, scandal or ridicule.
(b) Advertising
and Promotion.
Licensor also hereby grants to Licensee, with respect to each Program, the
rights and license to:
(i) use
(and
authorize the use of), including, without limitation, re-produce (and authorize
the reproduction of), the title of such Program and the name, likeness,
biography, photograph and recorded voice and music of any Person appearing
in
and/or associated with such Program for the purpose of advertising, exploiting
and publicizing such Program (and any programming offered in combination
therewith), its Exhibition hereunder and the services of Licensee and of
authorized exhibitors);
(ii) create
and use (and authorize the creation and use of) written summaries, ex-tracts
and
synopses of such Program for the purpose of advertising, exploiting and
publicizing such Program (and any programming offered in combination therewith),
its Exhibition hereunder and the services of Licensee and of authorized
exhibitors;
(iii) use
(and
authorize the use of), including, without limitation, reproduce (and authorize
the reproduction of), the advertising and publicity material provided by
Licensor; and
(iv) advertise,
publicize and promote (and authorize the advertising, publicizing and promotion
of) such Program (and any programming offered in combination therewith), its
Exhibition hereunder and the services of Licensee and of authorized exhibitors
by any means or media, but Licensee shall not, for such purposes, utilize
excerpts of more than three (3) minutes (or the length of one entire song,
if
longer) from such Program.
(c) Holdbacks.
With
respect to each Program, Licensor shall not itself, and shall not authorize
or
permit (other than pursuant to the rights and licenses granted herein) any
party
or Person to: (i) on or prior to the Exhibition Holdback Date, Exhibit any
version (including, but not limited to, all foreign language, cut and edited
versions and those produced for other media) of such Program so as to be
receivable within the Territory by any means or media, or (ii) on or prior
to
the Promotion Holdback Date, promote or announce any such Exhibition. The
foregoing notwithstanding, with respect to each Program, Licensor may authorize
a third party that is not an Affiliated System to Exhibit the version(s) of
such
Program made available to Licensee hereunder, by means of Non-Standard
Television (other than the Internet) on a Pay-Per-View Basis during such
Program’s License Period, and to promote such Exhibition.
(d) Creation
of Versions.
Without
derogating from Licensor’s obligation to deliver the Signal and/or Physical
Materials for each Program pursuant to Section 4(a) hereof, Licensor hereby
grants to Licensee the rights and license to create or cause the creation of:
(a) closed-captioned versions of such Program; and (b) foreign language dubbed
and/or subtitled versions of such Program.
3. LICENSE
FEES; STATEMENTS AND PAYMENTS
(a) In
consideration of the rights and license granted to Licensee hereunder and
Licensor’s agreements and obligations herein with respect to each Program, and
subject to the full and faithful performance of Licensor’s obligations
hereunder, Licensee shall pay to Licensor, with respect to each Program, an
amount, to be paid and accounted for in accordance with this Section 3, equal
to
the SD License Fees collected by Licensee from the Affiliated Systems with
respect to the Exhibition of such Program on a Pay-Per-View Basis. Each such
payment shall be by check(s) mailed to Licensor at the address set forth in
the
Deal Terms not later than the time(s) set forth in Section 3(b) hereof.
(b) With
respect to each Program, not later than the date five (5) business days after
the end of each Accounting Period for which SD License Fees are collected with
respect to such Program, Licensee shall send to Licensor a statement in such
form as Licensee shall designate (“Accounting
Statement”) setting forth with respect to each Affiliated System: (i) the number
of individual purchases of such Program by Program Subscribers reported by
such
Affiliated System with respect to such Accounting Period; (ii) the retail
price(s) for such Program reported by such Affiliated System with respect to
such Accounting Period; (iii) the Gross Receipts reported by such Affiliated
System with respect to such Accounting Period; (iv) the number of Subscribers
to
an SVOD Package during the first day of such Program’s month of Exhibition; and
(v) License Fees for such Program applied by Licensee during such Accounting
Period. The amount shown to be due Licensor shall be paid concurrently with
the
rendition of the respective Accounting Statement. All payments hereunder shall
be made in U.S. Dollars. All Accounting Statements and payments shall be
addressed to Licensor at the address set forth in the Deal Terms.
(c) Records
and Audit Rights.
(i)
With respect to each Program, Licensee shall keep at its main offices books
of
account directly relating to the Exhibition of such Program hereunder (which
books of account are herein referred to as “Records”), which shall be kept in no
less detail than and at the same place as such Records are customarily kept
by
Licensee.
(ii) With
respect to each Program, during the License Period therefor and for a period
of
two (2) years thereafter, Licensor may, at its own expense, but not more than
once annually and only upon not less than fifteen (15) days’ prior written
notice, cause the audit of the applicable Records at the aforesaid offices
solely in order to verify any Accounting Statement. Such audit may only be
conducted by a firm of Certified Public Accountants approved by Licensee. Any
such audit shall be conducted only during reasonable business hours and in
such
manner as not unreasonably to interfere with the normal business activities
of
Licensee and shall not continue for more than ten (10) business days. Licensor’s
right to examine Licensee’s Records is limited to the Accounting Statements for
the applicable Program that have been furnished within twelve (12) months prior
to such audit, and no statement may be audited more than once. Under no
circumstances shall Licensor have the right to examine Records relating to
any
other picture or program licensed by Licensee or Records relating to Licensee’s
business generally, or to examine any books or records of any Affiliated System.
Any item that Licensee accepts in an accounting from an Affiliated System shall
be binding upon Licensor. Licensor shall furnish to Licensee a copy of any
report of such audit within thirty (30) days after Licensor’s receipt thereof.
(iii) Each
Accounting Statement shall be final and conclusive upon Licensor from
and
after the date twelve (12) months after the date of receipt of such Accounting
Statement.
Licensor shall be forever barred from maintaining or instituting any action
or
proceeding based upon, or otherwise relating to, any transaction had by Licensee
or any Affiliated System or their respective permitted assignees or licensees,
in connection with any Program, or the accuracy of any item embraced by or
reflected on any Accounting Statement rendered hereunder, unless written
objection thereto shall have been delivered to Licensee within twelve (12)
months after the date of receipt of such Accounting Statement on which such
transaction or item was first reflected and unless such action or proceeding
is
commenced within six (6) months after delivery of such written objection (or
the
expiration of the applicable statute of limitations, if earlier).
(d) Taxes.
Licensor shall be responsible for the making of any payments with respect to
any
taxes now or hereafter imposed upon Licensor by a given jurisdiction for
licensing transmission rights to any Program in the respective jurisdiction
which are based upon or arise out of the Exhibition of such Program on a
Pay-Per-View Basis hereunder (“Program Taxes”). In those jurisdictions where
Affiliated Systems are required to remit such Program Taxes directly to the
taxing authorities, then the amounts payable by such Affiliated Systems to
Licensee, as well as the License Fees payable to Licensor, shall be reduced
accordingly.
(e) No
Less Favorable Terms.
(i) If
Licensor or any third party shall enter into an agreement or other arrangement
regarding any Program which, together with any Related Agreement(s), contains
any financial or other material terms (including, without limitation, the scope
of the rights granted) which are more favorable to any pay-per-view wholesaler
or network (including, without limitation, TVN), or similar licensee or
distributor, of such Program than any corresponding terms hereof applicable
to
Licensee, Licensor shall have the obligation immediately to inform Licensee
and
provide Licensee a written form of such terms. For purposes of the foregoing,
Licensor should assume that the amount of Gross Receipts retained by Licensee
with respect to each Program hereunder is 25%.
(ii) Without
limiting the generality of the foregoing, if Licensor or any third party shall
enter into an agreement or other arrangement regarding any Program which,
together with any Related Agreement(s), contains any financial or other material
terms (including, without limitation, the scope of the rights granted) which
are
more favorable to any pay-per-view retailer (including, without limitation,
DirecTV and EchoStar), or similar licensee or distributor, of such Program
than
any corresponding terms hereof applicable to the Affiliated Systems, Licensor
shall have the obligation immediately to inform Licensee and provide Licensee
a
written form of such terms. For purposes of the foregoing, Licensor should
assume that the amount of Gross Receipts retained by the Affiliated Systems
with
respect to each Program hereunder is 50%.
(iii) With
respect to any such more favorable terms referred to in this Section 3(e),
if
Licensee so elects, such more favorable terms shall be immediately incorporated
herein and made a part hereof; provided, however, that Licensee shall not be
obligated to accept, and no agreement or other arrangement shall fail to be
deemed more favorable because of, any terms relating to the particular property,
services or materials of any entity or any terms which cannot be met as easily
by one party as by another. Without derogating from Licensor’s obligations
hereunder, at Licensee’s request, Licensor shall deliver to Licensee a written
certification from a senior officer of Licensor stating whether or not Licensor
has entered into such an agreement. As used herein, “Related Agreement” shall
mean any transaction or agreement or other arrangement that
relates to or affects, or was entered into in conjunction with, any Program
and/or
the exhibition or other distribution thereof.
4. PHYSICAL
MATERIALS
(a) Physical
Materials.
With
respect to each Program, no later than the Delivery Date therefor, Licensor
shall deliver to the Transfer House (or as otherwise directed in Exhibit B
hereto), at Licensor’s cost and expense: (i) the SD film facility items of such
Program set forth in Exhibit B hereto, (ii) the HD film facility items of such
Program set forth on Exhibit C hereto, and (iii) a set of the other materials
relating such picture as set forth on Exhibits B and C hereto, which in each
case meet the programming and technical specifications set forth in Exhibits
B
and C hereto (such items being herein collectively referred to as the “Physical
Materials”). The Physical Materials shall be held in the name of Licensor for
the sole purpose of preparing therefrom at Licensee’s expense (and Licensor
shall authorize the Transfer House to prepare, on Video Material stock owned
or
to be owned by Licensee, and immediately release) for Licensee’s use hereunder
one (1) set of NTSC and HD video materials for such Version. Licensee shall
have
the right to prepare, at Licensee’s expense, from the video materials produced
at the Transfer House, such additional video materials of such Program as
Licensee shall require for its use hereunder (all such video materials referred
to in this sentence and the preceding sentence being hereinafter referred to
collectively as “Video Reproductions”). Without limiting the generality of the
rights granted to Licensee herein, Licensee shall have the right to encode
and
uplink the Video Reproduction(s) for transmission to authorized exhibitors
hereunder. Licensee is not granted the right to possess or Exhibit any Physical
Materials.
(b) Quality
of Delivery.
In
addition to any other rights Licensee may have hereunder or otherwise and
without derogation of Licensor’s obligation to cause such Physical Materials to
be timely delivered in accordance with the first sentence of Section 4(a),
if
Licensee in its sole judgment deems the content of any Program to be
unacceptable or any Physical Materials are not, in Licensee’s sole judgment, of
acceptable technical quality for tape-to-tape transfer for Exhibition by means
of Non-Standard Television or HD Television, Licensee shall have the right
to
require Licensor to deliver promptly to the Transfer House such additional
Physical Materials as Licensee shall require until Licensee has approved such
Physical Materials. Without derogating from any other obligation of Licensor
hereunder, Licensor’s delivery to the Transfer House of acceptable Physical
Materials for each Program on or prior to the Delivery Date pursuant to Section
4(a) is of the essence of this Agreement. In the event that Licensor does not
deliver acceptable Physical Materials for any Program on or prior to the
Delivery Date therefor pursuant to Section 4(a), without derogating from
Licensee’s other rights and remedies hereunder or otherwise with respect
thereto, Licensee may terminate this Agreement with respect to one or more
Programs and, within two (2) business days after Licensee delivers written
notice to Licensor of such termination, Licensor shall pay to Licensee the
Cancellation Fee provided for in the Deal Terms.
(c) Screening
Cassettes.
With
respect to each Program, Licensor shall deliver to Licensee for screening
purposes: (i) three videocassettes of each rough cut of such Program (with
visible time code) promptly upon such rough cut being completed; and (ii) as
soon as possible but in no event later than the Delivery Date therefor, three
videocassettes of the final version of such Program.
(d) Costs.
All
costs, including, without limitation, shipping and forwarding charges and
insurance, of transporting and returning the Physical Materials shall be borne
by Licensor, and all costs of transporting and preparing the Video Reproductions
shall be borne by Licensee.
(e) Loss.
Upon
the loss or theft of any Video Reproduction, Licensee shall furnish Licensor
with a certificate setting forth the circumstances of such loss or
theft.
(f) Security.
Licensee shall employ such security systems and procedures as may be reasonable
and feasible to prevent theft, pirating, unauthorized exhibition, copying or
duplication of the Video Reproductions; provided, however, that Licensee shall
not hereby be required to prohibit or prevent the recording, copying or
duplication of the Exhibition of any Program by any recipient thereof. Licensee
shall not authorize the use of any of the Video Reproductions for private
screenings, except that Licensee may permit: (i) screenings by its executives
and the executives of its parent company, (ii) screenings by the press for
the
purpose of critical review, (iii) screenings by members of Licensee’s
programming, scheduling, marketing and research staffs, and (iv) screenings
by
executives of those distribution systems, program services and motion picture
industry executives with which Licensee does or may do business.
(g) Storage
and Degaussing.
With
respect to each Program, after the end of the License Period therefor, each
Video Reproduction for such Program shall at Licensee’s option either be
degaussed or placed by Licensee at its own expense in a secure storage area,
as
to which Licensee shall provide Licensor an ongoing and exclusive right of
access, subject only to Licensee’s rights subsequently to elect to degauss such
Video Reproduction or to so retain it for reuse in the event of a subsequent
relicense of such Program.
5. ADVERTISING
AND PUBLICITY
(a) Advertising
by Licensee.
(i) Delivery.
With
respect to each Program, in connection with the rights granted to Licensee
pursuant to Section 2 hereof, Licensor shall deliver to Licensee, not later
than
forty-five (45) days prior to the Delivery Date therefor or as otherwise set
forth on Exhibit D hereto, at no cost to Licensee, the advertising and publicity
material for such Program set forth on Exhibit D hereto, together with all
other
advertising and promotional material requested by Licensee. No advertising
material delivered by or on behalf of Licensor with respect to a Program shall
include and/or contain any reference to any program other than such Program,
or
any reference to the name and/or logo of Licensor or any third party without
the
prior written consent of Licensee.
(ii) Restrictions.
With
respect to each Program, Licensee shall comply with any and all reasonable
and
customary restrictions imposed upon Licensor (consistent with the rights and
licenses granted hereunder to Licensee) as to the advertising and billing of
such Program in accordance with such advertising and billing instructions as
Licensor shall have furnished to Licensee in writing on or prior to the earlier
of: (i) the first date on which Licensor delivers any materials required to
be
delivered pursuant to Section 5(a) hereof with respect to such Program and
(ii)
the Delivery Date therefor. No advertising created by or under the control
of
Licensee in connection with any Program shall constitute an express endorsement
of any product by Licensor or by any person associated with such
Program.
(b) Advertising
by Licensor.
Licensor shall not advertise or promote any Program in any manner which
denigrates the exhibition of such Program or any other programming on a
Pay-Per-View Basis or HD basis hereunder. The names and marks “iND”, “iN
DEMAND”, “INHD” and “INHD2” and the names of certain of Licensee’s programs and
promotions, are the exclusive property of Licensee. Licensor shall not and
shall
not acquire any proprietary or other rights therein by reason of this Agreement.
Licensor shall not, without Licensee’s prior written approval, use or authorize
the use of Licensee’s name, logo(s), trademarks and/or service marks for any
purpose without Licensee’s prior written approval (in each case exercisable in
Licensee’s sole discretion).
6. CUTTING,
EDITING AND INTERRUPTIONS
Licensee
shall not make any modifications, deletions, cuts or alterations in or to the
final version of any Program without the prior approval of Licensor, except
that
Licensee may, in Licensee’s discretion, do any one or more of the following:
(a) digitize,
compress, encode or otherwise modify, add to or manipulate the signal containing
such Program, so long as the quality of the exhibition hereunder is not
materially affected thereby;
(b) create
for Exhibition hereunder a time-compressed version of such Program;
(c) insert
in
such Program graphics, promotional material, and commercial product
advertising;
(d) insert
a
voice-over audio announcement simultaneously with such Program’s closing
credits, identifying program(s) to be exhibited by Licensee, and/or compress
or
reposition the closing credits of such Program and insert in the remaining
portion of the screen a promotion of other programming;
(e) superimpose
upon such Program its rating and/or content advisories, and/or the logo of
Licensee or any affiliate;
(f) without
derogating from Licensor’s obligations hereunder and/or Licensee’s rights and
remedies hereunder or otherwise, edit such Program to conform to the running
time specified in the Deal Terms, or to comply with such standards and practices
as Licensee may deem appropriate for Exhibition hereunder; and
(g) permit
the viewer of the Exhibition of such Program, at such viewer’s discretion, to
stop, pause, accelerate, slow, reverse or resume such Exhibition.
7. REPRESENTATIONS
AND WARRANTIES
(a) Licensor’s
Warranties:
Licensor
represents and warrants to, and covenants with, Licensee with respect to each
Program (and all elements thereof, including the Vignettes) that:
(i) Licensor
is a California corporation and the person executing this Agreement on its
behalf is duly authorized to do so, and Licensor is authorized and has the
power
to enter into and perform its obligations under this Agreement, including,
without limitation, the power to pro-hibit the Exhibitions contemplated by
Section 2(c) hereof; Licensor owns or controls the right to Exhibit, publicize,
reproduce, and otherwise derive revenue from such Program in the manner and
form
provided in this Agreement, free and clear of any and all liens, claims or
encumbrances; Licensor has the right to grant the rights granted herein; and
such Program has not been licensed and will not be licensed for Exhibition
contrary to the provi-sions of this Agreement; and Licensor is not and will
not
be subject to any agreement or obligation which is or might be inconsistent
herewith or interfere with Licensee’s full enjoyment of the rights granted to
Licensee hereunder; and
(ii) Such
Program (and all elements thereof), its title and any advertising or publicity
mate-rials supplied by Licensor in connection therewith, do not and will not
contain any language or material which is obscene, libelous, slanderous or
defamatory and will not, when used as permitted hereunder, violate or infringe
upon, or give rise to any adverse claim with respect to, any common-law or
other
right whatsoever (including, with-out limitation, any copyright, trademark,
service xxxx, literary, dramatic, music or motion picture right, right of
privacy or publicity, contract right or moral rights of authors) of any Person,
or violate any law; and
(iii) Licensee
shall have no obligation with respect to any fees or commissions to any agent
or
representative of Licensor or any performer; and payment to Licensor shall
fully
discharge Licensee of any payment obligation regarding each performer’s services
hereunder; and
(iv) Such
Program has been produced in accordance with all applicable laws, regulations
and collective bargaining agreements; and such Program (and each of the
performances contained therein) is in all respects in compliance with all
applicable laws, regulations and collective bargaining agreements;
and
(v) Licensor
shall on a timely basis make all payments which may become due or payable under
any applicable guild or union collective bargaining agreement or under any
other
contract by reason of the exhibition of such Program hereunder; and neither
Licensee nor any Affiliated System or service with which Licensee does business
shall have any responsibility or liability for any services, deferments,
obligations or claims made for services provided or performed by, or rights
granted to, any Person in connection with such Program, nor any responsibility
or liability for the making of payments to or on behalf of any Person
(including, without limitation, any union, guild, actor, writer, director,
producer, craftsman, performer or governmental agency) by virtue of the use
made
of such Program hereunder, any trailer or other elements supplied by Licensor
or
any non-film material supplied by Licensor, all residual and other payments
to
any such Person being the sole responsibility and obligation of Licensor;
and
(vi) Licensor
shall on a timely basis make all payments of all Program Taxes which may become
due or payable; and neither Licensee nor any Affiliated System or service with
which Licensee does business shall have any responsibility or liability for
any
Program Taxes in connection with such Program, nor any responsibility or
liability for the making of payments to or on behalf of any governmental agency
by virtue of the use made of such Program hereunder, any trailer or other
elements supplied by Licensor or any non-film material supplied by Licensor,
all
such payments being the sole responsibility and obligation of Licensor;
and
(vii) Licensor
has obtained all necessary music clearances and licenses (including, without
limitation, music publishing and synchronization rights and licenses) and has
made all payments required in connection therewith; and Licensor has obtained
any and all necessary releases from the performers in such Program, and shall
also be responsible for having adequately informed the audience that such
Program is being recorded for commercial exploitation and distribution (and/or
being distributed live for commercial exploitation and distribution, as the
case
may be), and for obtaining from any and all performers and participants
(including audience members) all required releases of any right to be excluded
from the final production; and
(viii) The
non-dramatic music performance rights necessary for the uses of such Program
licensed hereunder (and for the uses of the advertising or publicity mate-rials
suppliedby Licensor in connection therewith) are: (A)(I) controlled by American
Society of Composers, Authors and Publishers or Broadcast Music, Inc. and (II)
available for direct license by Licensee from the publisher(s) controlling
such
rights; (B) owned by or licensed to Licensor so that no additional clearance
of,
or payment with respect to, such rights is required for the uses of such Program
licensed hereunder; or (C) in the public domain;
and
(ix) The
title
of such Program as set forth in the Deal Terms is the same as that which appears
on the Physical Materials and/or Signal and Backup Signal and advertising
materials delivered hereunder with respect thereto; and the rating and content
advisories for such Program as set forth in the Deal Terms are the same as
the
rating and content advisories that appear on all physical materials and
advertising materials used in connection with the Exhibition of such Program
hereunder or otherwise; and
(x) Such
Program is validly registered for copyright protection in the U.S. and will
remain so protected during its License Period; and
(xi) There
are
no claims, litigation or other legal proceedings pending or threatened relating
to such Program or the rights granted herein; and
(xii) The
first
day of the License Period for such Program is the date of the first Exhibition
of such Program so as to be receivable within the Territory by any means or
media.
(b) Licensee’s
Warranties.
Licensee represents and warrants to Licensor that Licensee is authorized and
has
the power to enter into and perform its obligations under this
Agreement.
8. INDEMNIFICATION
(a) Licensor
assumes liability for, and shall indemnify, defend, protect, save and hold
harmless Licensee and each member therein and division thereof, and their
respective parents, subsidiary and affiliated divisions and companies,
distributors, licensees and permitted assigns, and the respective shareholders,
directors, officers, employees and agents of the foregoing (the “Licensee
Indemnified Parties”) from and against any and all claims, actions, suits,
costs, liabilities, judgments, obligations, losses, penalties, expenses or
damages (including, without limitation, reasonable legal fees and expenses)
of
whatsoever kind and nature imposed on, incurred by or asserted against any
of
the Licensee Indemnified Parties, arising out of any breach or, solely with
respect to third party claims, alleged breach by Licensor of any representation
or warranty or covenant made, or obligation assumed, by Licensor pursuant to
this Agreement. The provisions of this Section 8(a) shall apply, without
limitation, to claims brought by Licensee against Licensor.
(b) Licensee
assumes liability for, and shall indemnify, defend, protect, save and hold
harmless Licensor, its parents, subsidiary and affiliated companies, grantors
and permitted assigns, and the respective shareholders, directors, officers,
employees and agents of the foregoing (the “Licensor Indemnified Parties”) from
and against any and all claims, actions, suits, costs, liabilities, judgments,
obligations, losses, penalties, expenses or damages (including, without
limitation, reasonable legal fees and expenses) of whatsoever kind and nature
imposed on, incurred by or asserted against any of the Licensor Indemnified
Parties, arising out of any breach or, solely with respect to third party
claims, alleged breach by Licensee of any representation, warranty or covenant
made, or obligation assumed, by Licensee pursuant to this Agreement. The
provisions of this Section 8(b) shall apply, without limitation, to claims
brought by Licensor against Licensee.
(c) In
order
to seek or receive indemnification hereun-der in cases involving third-party
claims:
(i) The
party
seeking indemnification (the “Indemnitee”) must have promptly notified the other
(the “Indemnitor”) of any claim or litigation of which it is aware to which the
indemnification relates; and
(ii) With
regard to any claim or litigation to which the Indemnitor itself is not a party,
the Indemnitee must have afforded the Indemnitor the opportunity to participate
in any compro-mise, settlement, litigation or other resolution or disposition
of
such claim or litigation.
9. BANKRUPTCY
If
either
party hereto should:
(a) file
a
petition, answer or consent seeking relief under Title 11 of the United States
Code, as now constituted or hereafter amended (the “Bankruptcy Code”), or any
other applicable Federal or State bank-ruptcy law or other similar law (“Any
Bankruptcy Law”); or
(b) consent
or become subject to the institution of proceedings under Any Bankruptcy Law
or
to the filing of any petition thereunder or to the appointment of, or taking
possession by, a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official of it or of any substantial part of its
property; or
(c) fail
generally to pay its debts as such debts become due or otherwise become
insolvent; or
(d) take
any
corporate action in furtherance of any aforesaid action; or
(e)
become
the subject of a decree or order by a court having jurisdiction in the premises
for relief in respect of it (and such decree or order shall continue unstayed
and in effect for a period of sixty (60) consecutive days): (i) under Any
Bankruptcy Law, (ii) appointing a receiver, liquidator, assignee, trustee,
sequestrator or similar official of it or of any substantial part of its
property, or (iii) ordering the winding-up or liquidation of its affairs;
or
(f) pursuant
to Any Bankruptcy Law have its rights hereunder become exercisable by a trustee
or debtor-in-possession who elects to reject this Agreement;
the
other
party hereto shall, at its option, have the right to terminate this Agreement
immediately by sending written notice of such termination, whereupon all such
party’s obligations hereunder shall cease. In addition to any other rights and
remedies available hereunder, if this Agreement is assumed in the course of
either party’s bankruptcy case by a trustee or debtor-in-possession pursuant to
Section 365 of the Bankruptcy Code (such party being herein referred to as
the
“Bankrupt Party”), the other party hereto shall be entitled to recover as a part
of the default to be cured by such trustee or debtor-in-possession any
reasonable legal fees and expenses paid or incurred by such other party in
attempting to remedy a breach by such Bankrupt Party hereunder prior to such
Bankrupt Party’s filing of a petition under the Bankruptcy Code and/or in
effecting an assumption of this Agreement by such Bankrupt Party’s trustee or
debtor-in-possession.
10. CONFIDENTIALITY
Neither
Licensor nor Licensee shall disclose to any third party (other than their
respective employees, in their capacity as such) any information with respect
to
the financial terms and provisions of this Agreement, nor shall Licensor
disclose to any third party (other than its employees, in their capacity as
such) any information to which Licensor or Licensor’s employees or auditors
gains access in connection with the provisions of Section 3 hereof, except:
(a)
to the extent necessary to comply with law or the valid order of a court of
competent jurisdiction, in which event the party making such disclosure shall
so
notify the other and shall seek confidential treatment of such information,
(b)
as part of its normal reporting or review procedure to its parent company,
its
partners, its auditors and its attorneys, provided, however, that such parent
company, partners, auditors and attorneys agree to be bound by the provisions
of
this Section 10, and (c) in order to enforce its rights pursuant to this
Agreement in a legal proceeding. In addition, Licensor shall not make, and
shall
not authorize, any press release or other announcement regarding the existence
of this Agreement or any of the terms hereof without the prior written consent
of Licensee.
11. GENERAL
PROVISIONS
(a) Assignment.
This
Agreement may not be assigned by Licensee or Licensor, either voluntarily or
by
operation of law, without the prior written consent of the other, and any such
assignment shall not relieve the assignor of its obligations hereunder, except
that Licensor may assign its rights to receive payments from Licensee, provided
that: (i) a copy of such assignment is delivered to Licensee, (ii) Licensee
shall not be obligated to make payments or disbursements to more than one
entity, (iii) such assignment is duly acknowledged by an authorized officer
of
Licensor and (iv) a non-disturbance letter from such assignee satisfactory
in
form and substance to Licensee in its sole discretion is delivered to Licensee.
Notwithstanding the foregoing, either Licensor or Licensee may assign this
Agreement or any of its rights hereunder, without the other’s consent, to any
entity with which it may be merged or consolidated or which acquires all or
substantially all of its assets, provided that such entity with which it is
merged or consolidated or which acquires all or substantially all its assets
agrees in writing to assume all of its obligations under this Agreement. Any
purported assignment or transfer by either party of any of its rights or
obligations under this Agreement other than in accordance with the provisions
of
this Section 11(a) shall be void.
(b) Copyright.
With
respect to each Program, prior to the commencement of the License Period
therefor, Licensor shall register, or cause to be registered, the copyright
in
such Program with the United States Copyright Office and, if the original
copyright for such Program is not registered in Licensor’s name, evidence of the
recordation in the Copyright Office of the transfer from the owner of the
copyright in such Program to Licensor, directly or indirectly, of ownership
of
such rights granted to Licensee under this Agreement or such other evidence
of a
license of such rights to Licensor as Licensee shall deem satisfactory. Licensor
shall execute such licenses, assignments and/or instruments as Licensee may
from
time to time deem necessary or desirable to evidence, maintain, protect, enforce
or defend its right or title in or to each and any Program. Licensor hereby
irrevocably appoints Licensee the true and lawful attorney-in-fact of Licensor
to execute, verify, acknowledge and deliver any and all such licenses,
assignments and/or instruments which Licensor shall fail or refuse to execute,
verify, acknowledge or deliver and Licensor hereby acknowledges that such
appointment is coupled with an interest.
(c) Insurance.
With
respect to each Program, Licensor shall deliver to Licensee not later than
the
Delivery Date therefor, a valid certificate of insurance (satisfactory in form
and substance to Licensee) evidencing the existence of the insurance coverage
required in the Deal Terms, with a certified copy of the endorsement of
insurance (also satisfactory in form and substance to Licensee) attached
thereto. If Licensor fails to secure and maintain such insurance with respect
to
any Program, or if such coverage for such Program lapses for any reason, then
without derogating from Licensee’s other rights and remedies hereunder or
otherwise, Licensee may terminate this Agreement with respect to such Program,
or, at its election, may itself obtain such insurance and require Licensor
to
reimburse Licensee for the cost thereof (it being acknowledged and agreed that
Licensee may deduct all or a portion of the cost thereof from such License
Fees
as become payable hereunder in lieu of requiring reimbursement of such cost
(or
portion thereof, as the case may be), from Licensor).
(d) Force
Majeure.
(i) Neither
party hereto shall be liable to the other for any delay or default in or failure
of, performance, including Licensee’s inability to transmit and exhibit any
Program(s), which delay, default or failure results from any act, cause,
contingency or circumstance beyond the control of such party (“Event of Force
Majeure”), including, without limitation, any governmental action,
nationalization, expropriation, seizure, embargo, regulation, order or
restriction (whether federal or state), war (whether or not declared), civil
commotion, disobedience or unrest, insurrection, public strike, riot or
revolution, lack or shortage of or inability to obtain any labor, machinery,
materials, fuel, supplies or equipment from normal sources of supply, strike,
work stoppage or slow-down, lockout or other labor dispute, fire, flood, drought
or other natural calamity, damage or destruction to plant, laboratory and/or
equipment, satellite transmission failure, uplink and/or head end failure,
or
any other accident, condition, cause, contingency or circumstance (including,
without limitation, acts of God) within or without the United States beyond
the
control of such party, and no such delay or default in, or failure of
performance shall constitute a breach by either party hereunder. The License
Period and any time period specified herein for the performance of any party
of
any act hereunder shall be extended by the period of any delay caused by an
Event of Force Majeure. Licensor shall promptly notify Licensee of any Event
of
Force Majeure which may delay or prevent Licensor’s full performance and will
keep Licensee advised regarding the status thereof.
(ii) Without
limiting the generality of the foregoing, Licensee shall not be in breach of
this Agreement if any Program (or a significant portion of any Program, as
determined by Licensee) is not transmitted or delivered: (A) to the Studio
for
any reason beyond Licensor’s control; or (B) from the Studio to Program
Subscribers for any reason beyond the control of Licensee or any Affiliated
System; or (C) if the initial broadcast of such Program runs longer than the
running time provided for in the Deal Terms, and any Affiliated System’s
addressable controllers shut off such Program. In addition, in the event of
any
occurrence described in the immediately preceding clauses (A) or (B), Licensee
shall have no liability to make payments hereunder. In the event of any
occurrence described in the immediately preceding clause (C), Licensee and/or
the Affiliated Systems may make appropriate adjustments (as determined by
Licensee and/or the Affiliated Systems) in the pay-per-view fees to be paid
by
Program Subscribers for such Program, and Licensee shall notify Licensor of
any
such adjustments as soon as practicable. In addition, Licensee shall promptly
notify Licensor if any event occurs which may preclude Licensee from receiving
payments from the Affiliated Systems. Without limiting Licensee’s rights and
remedies hereunder or otherwise, promptly upon Licensee’s request, Licensor
shall refund any amount paid by Licensee to Licensor with respect to those
Affiliated Systems that are providing refunds or credits to Program Subscribers
for such Program(s).
(e) Captions.
The
titles of the sections
of this
Agreement are for convenience only and shall not in any way affect the
interpretation of this Agreement.
(f) No
Waiver. (i) No
course
of dealing between the parties shall operate as a waiver of any of either
party’s rights under this Agreement. No delay or omission on the part of either
party in exercising any right under this Agreement shall operate as a waiver
of
such right or any other right hereunder. No waiver shall be binding against
the
party asserted to have made such waiver unless it is in writing and signed
by
one otherwise authorized to execute this Agreement on behalf of such waiving
party. A waiver by either party of any of the terms or conditions of this
Agreement in any instance or a waiver by either party of any breach of this
Agreement shall not be deemed or construed to be a waiver of such terms or
conditions for the future or a waiver of any subsequent breach hereof. All
reme-dies, rights, undertakings, obligations and agreements contained in this
Agreement shall be cumulative, and none of them shall be in limitation of any
other remedy, right, undertaking, obligation or agreement of either
party.
(ii) Notwithstanding
anything to the contrary set forth herein, in the event that this Agreement
is
executed and delivered subsequent to any date on which Licensor is required
to
deliver any item or take any action hereunder, the date by which such delivery
or action is required to take place shall be delayed to the date five (5)
business days after the execution and delivery of this Agreement.
(g) Choice
of Law.
This
Agreement and all matters or issues collater-al hereto shall be governed by
the
laws of the State of
New York applicable to contracts entered into and to be
fully performed therein.
.
(h) Survival
(i) All
representations and warranties contained in this Agreement or made in writing
by
either party in connection herewith shall survive the execution and delivery
of
this Agreement and any investigation made by Licensee or Licensor or on their
respective behalves, and such representations and warranties shall remain in
effect so long as the party making such representations and warranties continues
to have obligations hereunder.
(ii) The
provisions of Sections 7, 8, 10 and 11 shall survive the termination of this
Agreement.
(i) Merger.
This
Agreement constitutes the entire agreement between Licensor and Licensee with
respect to the licensing by Licensee of the Programs during their respective
License Periods hereunder, replaces and supersedes all previous agreements
and
understandings whether written or oral pertaining thereto, and may be changed
or
modified only by an agreement in writing signed by Licensor and
Licensee.
(j) Equitable
Relief.
Licensor agrees that in addition to any other right or remedy granted Licensee
hereunder, Licensee shall be entitled to injunctive and other equitable relief
against Licensor to prevent any breach by Licensor of the provisions of Section
2, Section 4 and/or Section 10 of these Standard Terms and Conditions. Resort
by
Licensee to equitable relief, however, shall not be construed as a waiver by
Licensee of any other rights or remedies Licensee may have against Licensor
for
damages or otherwise. It is expressly understood and agreed that in the event
Licensee breaches any provision of this Agreement, the damage, if any, caused
Licensor thereby will not be irreparable or otherwise sufficient to entitle
Licensor to injunctive or other equitable relief. Licensor acknowledges that
Licensor’s rights and remedies in any such event shall be strictly limited to
the right, if any, to recover damages in an action at law, and Licensor shall
not be entitled by reason of any such breach to rescind this Agreement, or
to
restrain Licensee’s exercise of any of the rights granted to Licensee hereunder,
or to enjoin or restrain the Exhibition of any version of any Program hereunder,
or any advertising, publicity or promotion in connection therewith.
(k) Severability.
If any
provision of this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect in any jurisdiction, such invalidity,
illegality or unenforceability: (i) shall not affect any other provision of
this
Agreement, but this Agree-ment shall be construed as if such invalid, illegal
or
unenforce-able provision had never been contained herein, and (ii) shall affect
neither such provision nor this Agreement in any other jurisdiction. If,
moreover, any restriction or other provision of this Agreement shall for any
reason be held to be too broad as to duration, geographical scope, activity
or
subject, it shall be construed by limiting and reducing such provision or
restriction so as to be enforceable to the extent compatible with applicable
law, the parties hereby agreeing that said restrictions and other provisions
of
this Agreement are fair and reasonable as at the date hereof. The parties shall
endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
(l) Independent
Contractors.
Licensor and Licensee are independent contractors with respect to each other.
Nothing herein shall create any association, partnership, joint venture,
fiduciary or agency relationship between them. Nothing contained herein shall
be
deemed to create a specific fund of any Gross Receipts or Licensor’s share
thereof, or with respect to any other sums, or to give Licensor a lien on the
rights granted to Licensee or the proceeds derived by Licensee from the exercise
of such rights or to preclude Licensee from commingling any Gross Receipts
with
other monies, and Licensor waives any right to claim to the contrary. Without
limiting the generality of the foregoing, Licensee shall have no fiduciary
obligation to Licensor, and Licensee shall not be deemed to have received any
sums as an agent or fiduciary for Licensor’s account.
(m) No
Representation.
Nothing
contained in this Agreement shall obligate Licensee to exercise any or all
of
Licensee’s rights hereunder or to release, distribute or exploit any Program(s)
or any part thereof in any form or medium, all such decisions being in
Licensee’s sole discretion. Licensee has not made and shall not be required to
make any representations or promises regarding the number of Program Subscribers
who will order any Program, the amount of Gross Receipts which will be derived
therefrom, or Licensor’s share of such Gross Receipts.
(n) No
Third Party Beneficiaries.
Except
as expressly provided to the contrary in Section 8 of these Standard Terms
and
Conditions, this Agreement is not for the benefit of any third party and shall
not be deemed to give any right or remedy to any such party whether referred
to
herein or not.
(o) Consent
to Jurisdiction.
Licensor hereby: (i) agrees that any litigation, action or proceeding arising
out of or relating to this Agreement may be instituted in any state or federal
court in the City of
New York, (ii) waives any objection which it might have
now
or hereafter to the venue of any such litigation, action or proceeding, (iii)
irrevocably submits to the jurisdiction of any such court in any such
litigation, action or proceeding and (iv) waives any claim or defense of
inconvenient forum. Licensor hereby consents to service of process by registered
mail, return receipt requested, at Licensor’s address set forth in or pursuant
to the Notices
provision of the Deal Terms and expressly waives the benefit of any contrary
provision of foreign law.
(p) Successors
and Assigns.
Subject
to the provisions of Section 11(a) of these Standard Terms and Conditions,
this
Agreement shall inure to the benefit of each of the parties’ successors and
assigns.
(q) Joint
Participation in Drafting this Agreement.
The
parties acknowledge and confirm that each of their respective attorneys have
participated jointly in the drafting, review and revision of this Agreement
and
that each party has had the benefit of its independent legal counsel’s advice
with respect to the terms and provisions hereof and its rights and obligations
hereunder. Each party hereto stipulates and agrees that the rule of construction
to the effect that any ambiguities are to be or may be resolved against the
drafting party shall not be employed in the interpretation of this Agreement
to
favor any party against another and that no party shall have the benefit of
any
legal presumption or the detriment of any burden of proof by reason of any
ambiguity or uncertain meaning contained in this Agreement.
EXHIBIT
B
to
Agreement
dated as of February 6, 2007
by
and
between NUTECH DIGITAL, INC. (“Licensor”)
and
iN
DEMAND L.L.C. (“Licensee”)
SD
Physical Materials
*Any
tape
not conforming to the above specifications will be returned for
re-duplication.
Basic
Format:
Digital
Beta frame panned and scanned scene-to-scene color-corrected NTSC master
conforming to all SMPTE standards. Video level is not to exceed 100 IRE. Chroma
level is not to exceed 110 IRE.
Audio
Configuration:
Each
master must have four channels of audio as follows:
Channel
1: Stereo/English/Left (or mono-mix)
Channel
2: Stereo/English/Right (or mono-mix)
Channel
3: Stereo/Spanish/Left (or mono-mix or English)
Channel
4: Stereo/Spanish/Right (or mono-mix or English)
**Music
& effect (M&E) is not an option for channels 3 & 4**
Time
Code:
Continuous drop-frame time code on address track
Color
Bars and Dolby Tone: 00:58:30.00 - 00:59:30.00
Start
of
Program: 01:00:00.00
Rating
and Content Advisories: With
the exception of 2257 Notices
(further
detail below) Rating and Content Advisories are provided. All taping disclaimers
such as FBI warnings and ratings should appear before 01:00:00.00 time code
xxxx, eliminate slate if necessary. Note: “Reformatted to Fit Screen” slate is
considered part of the feature and should be dubbed AFTER the 01:00:00.00 time
code xxxx.
18
U.S.C. 2257 Compliance Notice:
If the
event and/or feature (Program) contains sexually explicit conduct, whether
actual or simulated, a statement describing the location of 2257 Compliance
Records must
be
affixed to every copy of the Program provided. The statement needs to be
displayed during the end credits, or if there are no end credits, within one
minute from the start of the program (after the 01:00:00:00 time code xxxx)
and
before the opening scene. The notice must be displayed long enough to read.
The
typeface must be no less than 12-point font, or no smaller than the
second-largest typeface on the material and in a color that clearly contrasts
with the background color of the material.
Closed-Captioning:
Closed-captioning must be provided, and must be provided in line 21, field
1 of
the Vertical Blanking Interval.
Time
Compression:
At
Licensee’s request, the master delivered hereunder shall be time-compressed (at
Licensor’s cost).
EXHIBIT
B
(continued)
Overlapping
Reels:
If the
program is being provided on multiple Digital Beta cassettes, 10 full minutes
(10:00) of overlapping material (pad) must be provided from one reel to
another.
BOX
LABEL INFORMATION:
1.
Title
2.
Reel #
__ of __
3.
Version Rating
4.
Time
Code In of Audio/Video
5.
Time
Code Out of Audio/Video
6.
Reel
Duration
7.
Program Duration
8.
Audio
Configuration (Stereo/Mono)
9.
Dolby
(Yes/No)
10.
Closed-Captioned (Yes/No)
11.
Second Language (Yes/No)
|
Event
Delivery:
|
Comcast
Media Center
|
|
|
0000
X. Xxx Xxxxx Xxxx
|
|
|
Xxxxxxxxx,
Xxxxxxxx 00000
|
|
|
Attention:
Xxxx Xxxxxx - Lead Coordinator/PPV
|
| |
Telephone:
(000) 000-0000
|
| |
Telecopier:
(000) 000-0000
|
EXHIBIT
C
to
Agreement
dated as of February 6, 2007
by
and
between NUTECH DIGITAL, INC. (“Licensor”)
and
iN
DEMAND L.L.C. (“Licensee”)
HD
Physical Materials
With
respect to each Program, Licensor shall deliver to the Transfer House the
Physical Materials set forth below, free of scratches, splices and all encoding
technologies, including, without limitation, any technology which would prevent
copying or duplication by recipients of such Program hereunder but excluding
such encoding technologies as Licensee may otherwise request hereunder,
conforming to the English language version of such Program that was theatrically
released in the United States and, if different, each version of such Program
that was distributed by means of Home Video Device in the United
States.
The
following are the technical specifications for the Physical Materials for each
Picture:
*
Any
tape provided not conforming to the below specifications will be returned for
re-duplication.
Basic
Format:
HDCAM
cassette master in 1080i HD (16:9 Ratio) format conforming to all relevant
SMPTE
standards. Video frame rate must be 29.97
(frames
per
second).
Minimum
and Maximum Video Levels (using component format of “Y Pb Pr” or “Y Cb
Cr”:
Luma
(Y): 0
IRE (0
mV) to 100 IRE (700 mV)
Chroma
(Cb Cr): With
50
IRE (350 mV) as a reference,
0
IRE (0
mV) to 100 IRE (700 mV)
Audio
Configuration::
Stereo/PCM
-
If
provided as a surround or stereo mix, each master MUST have 2 pairs of audio
as
follows:
AES
Pair
1: English Lt/Rt Surround Matrix or Stereo Left/Right
AES
Pair
2: Spanish Lt/Rt Surround Matrix or Stereo Left/Right (If Spanish is NOT
available, English audio (duplicate of AES Pair 1) must be provided.
*Both
audio pairs must contain a full program mix. Music and effects (M/E) must not
be
provided.
Dolby
Digital 5.1
AES
Pair
1: English Lt/Rt Surround Matrix or Stereo Left/Right
AES
Pair
2: Dolby E (5.1+2 mode)
Dolby
E must be provided on the 2nd
audio pair (AES Pair 2) of the HDCAM cassette as follows:
Channel
1
- Left (English)
Channel
2
- Right (English)
Channel
3
- Center (English)
Channel
4
- Low Frequency Effects (LFE) (English)
Channel
5
- Left Surround (Rear) (English)
Channel
6
- Right Surround (Rear) (English)
Channel
7
- Spanish* (or English) Lt/Rt Surround Matrix (or Stereo Left)
Channel
8
- Spanish* (or English) Lt/Rt Surround Matrix (or Stereo Right)
*If
Spanish is NOT available, English Surround Lt/Rt or Stereo L/R audio must be
provided.
Dolby
E
Specifications:
| |
·
|
Dolby
Digital Metadata Creation:
|
Dolby
Digital (AC-3) Metadata creation/insertion must follow standard Dolby practices.
The Dolby DP571 “E” encoder is capable of generating Dolby Digital (AC-3)
metadata and embedding this data into the Dolby E encoded audio bitstream.
Upon
Dolby E decoding, this metadata is forwarded to the Dolby Digital (AC-3)
emissions encoder and will be applied to the Dolby Digital (AC-3) bitstream
on a
program by program and continuous basis.
*Also
note that the Dolby DP570 Multichannel Audio Tool is also capable of generating
Dolby Digital (AC-3) Metadata to feed to a Dolby DP571 “E”
Encoder.
| |
·
|
Dialog
Normalization (dialnorm) Value:
|
Dialog
Normalization is a feature of Dolby Digital (AC-3) that normalizes the
reproduction level of the overall program. Correctly used, this feature
eliminates the need for the viewer to frequently adjust the volume control
to
compensate for perceived loudness differences from program to
program.
In
general there are no default settings for dialnorm.
The
value depends on the nature of the program, and in the context of mixed
programming it is essential for this value to be set correctly for each program.
Dolby
recommended dialogue measurement techniques must be followed for each Dolby
E
bitstream. The Dialog Normalization value shall be determined by measuring
the
dialogue level (i.e. center channel dialogue in a 5.1 program) with the Dolby
LM100 Broadcast Loudness Meter or an equivalent Leq(A) meter. The measured
dialogue level value should then be entered in the DP571 Dolby E Encoder as
part
of the metadata authoring process for the final Dolby E encode.
The
RF
Overmodulation Protection metadata parameter shall be set to
“disabled”.
The
“Film
Standard” Dynamic Range Compression Profile shall be the default profile for
both Line Mode and RF Modes.
All
other
metadata parameter settings/values shall follow standard Dolby practices and
also conform to the standard for which the movie was mixed to.
When
a
Dolby E bitstream is encoded and placed on the tape, the Dolby E track (on
tape)
shall be 1 Frame early to allow for decoder delay. No internal delays shall
be
removed or added to the tape machine (if applicable). This can be accomplished
by advancing the source audio 2 frames when Dolby E encoding.
Minimum
and Maximum Audio & Dialogue Levels:
Reference
levels (i.e. amplitudes) are required as per SMPTE RP155 recommendation. Note:
-20 dBFS digital is equivalent to +4 dBu in the analog domain, where +4dBu
is
equivalent to 0VU.
Program
peak levels shall not exceed -5 dBFS (digital) or +19 dBu (analog)
Spoken
dialogue levels shall be between -26 and -29 dBFS Leq(A) (digital). Note: VU
style meters are not A-weighted. Dialogue measurement results using VU style
meters can only be considered an approximation of true Leq(A)
measurement.
Time
Code:
Continuous drop-frame time code on address track
Color
Bars and Dolby Tone: 00:58:30.00 - 00:59:30.00
Start
of
program: 01:00:00.00
Rating
and Content Advisories:
Rating
and Content Advisories are provided. All taping disclaimers such as FBI warnings
and ratings should appear before 01:00:00.00 time code xxxx, eliminate slate
if
necessary.
Closed-Captioning:
Closed-captioning (EIA 708) must be provided on Line 9, and adhere to SMPTE
333M, 334M, and 291M where applicable.
Time
Compression:
At
Licensee’s request, the master delivered hereunder shall be time-compressed (at
Licensor’s cost).
Segmenting
Programs:
If the
program is provided is multiple segments, 10 full seconds (00:10) of black
with
no audio must be provided between each segment.
Overlapping
Reels:
If the
program is being provided on multiple HDCAM cassettes, 5 full minutes (5:00)
of
overlapping material (pad) must be provided from one reel to
another.
Cut
Sheet: Written
documentation must be provided with each HDCAM cassette, detailing the following
information:
|
4.
|
Time
Code In of Audio/Video
|
|
5.
|
Time
Code Out of Audio/Video
|
|
6.
|
Segment
Information (if applicable)
|
| |
·
|
Time
Code In of Audio/Video for each
segment
|
| |
·
|
Time
Code Out of Audio/Video for each
segment
|
| |
·
|
Time
Duration for each segment
|
|
9.
|
Audio
Configuration (Dolby
E/Surround/Stereo)
|
|
10.
|
Closed-Captioned
(Yes/No)
|
|
11.
|
Second
Language (Yes/No)
|
Delivery: iN
DEMAND
0000
X. Xxx Xxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxx Xxxxxxx
iN
Demand Broadcast Operations
Telephone:
(000) 000-0000 / Fax: (000) 000-0000
EXHIBIT
D
to
Agreement
dated as of February 6, 2007
by
and
between NUTECH DIGITAL, INC. (“Licensor”)
and
iN
DEMAND L.L.C. (“Licensee”)
Advertising
Materials
Licensor
shall deliver, at no cost to Licensee, the following advertising and promotional
materials with respect to each version of each Program:
(i) Camera-ready
customizable ad slicks in various sizes;
| |
(ii)
|
Camera-ready
logo artwork for program guides and
billstuffers
|
| |
(iii)
|
35mm
color slides and black and white 8x10
stills;
|
| |
(iv)
|
Press
kits including biographies of the performers, copylines, storylines,
telemarketing scripts and on hold
messages;
|
| |
(v)
|
at
least two (2) 30-second video spots and, if available, one 60-second
video
spot; and
|
| |
(vi)
|
radio
spots, posters and premium items.
|
Without
limiting Licensee’s rights and remedies hereunder or otherwise, if Licensor
fails to deliver any of the foregoing items to Licensee on a timely basis and
Licensee incurs any expenses to compensate for Licensor’s failure to deliver any
of the items or failure to make timely delivery, Licensor shall reimburse all
of
Licensee’s reasonable out-of-pocket costs therefor.
