Licenčná zmluva na nákup licenčných práv programov
Licenčná zmluva na nákup licenčných práv programov
(výpis zo zmluvy)
Zmluvní partneri: HAT TRICK INTERNATIONAL LIMITED
00 Xxxx Xxxx Xxxxxx XX0 0XX VAT GB 820 7093 48
a
Rozhlas a televízia Slovenska
Mlynská dolina, 845 45 Bratislava
IČO: 47 232 480
IČ DPH: SK2023169973
Štatutárny orgán: Xxxxxx Xxxx
Generálny riaditeľ
zapísaná: Obchodný register Okresného súdu Bratislava I., Oddiel: Po, Vložka č: 1922/B
Programy: Premiérový televízny seriál
4x60´
Práva a definície: Nákup licenčných práv programov pre vysielanie RTVS na televíznych programových službách Jednotka a Dvojka
Trvanie zmluvy: Licenčná doba na 3 roky 31.12.2016 – 30.12.2019
Licencia na územie: Povolený jazyk:
Slovenská republika Slovenský - dabing
Počet vysielaní: 3 vysielania + každé vysielanie vrátane reprízy do 48 hodín
Vysielacie práva: Terestriálne – Free TV práva exkluzívne, DTT práva, Voľné káblové a satelitné free-TV práva.
, Licenčný poplatok: 5,200 ,- EUR
Splatnosť licencie: 50% po podpise zmluvy, najneskôr do 15.10.2016 50% po dodaní a technickej akceptácii materiálov, najneskôr do 30.11.2016
Podmienky dodania materiálu: Technické poplatky za materiál:
Po zaplatení prvej splátky 50%
180,- Eur
Technické parametre materiálu: Dátum dodania materiálu:
HD ProRes 422 (HQ) MOV súbory budú doručené cez FTP server
Do 30.10.2016
Prístup k jazykovým verziám:
Ustanovenie o zákonnej povinnosti zverejnenia zmluvy:
za HAT TRICK INTERNATIONAL LIMITED
Prístup majiteľa licencie k jazykovým verziám možný, špecifikované v odseku Special Terms 2.
Doplnené v bode Special Terms 1.
za RTVS
Xxxxxx Xxxx Generálny riaditeľ
Spracovala: Xxxxxxxx Xxxxxxxxxxx V Bratislave, 5.9.2016
"THE SECRET" PROGRAMME LICENCE AGREEMENT
Date: 2016
Between:
1. HAT TRICK INTERNATIONAL LIMITED whose principal place of business is 00 Xxxx Xxxx, Xxxxxx XX0 0XX, VAT GB 820 7093 48("the Licensor")
-and-
2. RADIO & TELEVISION OF SLOVAKIA – RTVS whose principal place of business is Xxxxxxx xxxxxx, 000 00 Xxxxxxxxxx, Xxxxxx Xxxxxxxx, VAT °SK2023169973 ("the Licensee")
(each a “Party” and together the “Parties”).
Recital:
The Licensor is the authorised distributor of the Programme and has agreed with the Licensee a licence of the Rights for the Term in the Territory on the following terms and conditions:
Programme | Series | Number of and duration of Episodes (mins) | Licence Fee per Episode (Euro€) |
The Secret | n/a | 4 x 60 | 1,300 |
PART A - TERMS SHEET:
Programme(s): Total: 4 Episodes, each of 60 minutes slot length including titles |
Total Licence Fee: €5,200 (five thousand, two hundred Euros) |
The Rights: The following exclusive rights (subject to the provisions of the Special Terms below): • Free TV Rights |
Licensed Platform(s): The channels, “Jednotka” and “Dvojka” |
Territory: Slovak Republic |
Licensed Transmissions (pre-purchased by Licence Fee): 3 runs, plus a quick repeat within 48 hours of each run |
Term: The period of 3 years commencing on 31 December 2016 and ending on 30 December 2019 (inclusive) |
306392_4
Authorised Language: Original language dubbed and/or subtitled into Slovak |
Holdback: N/A |
Licence Fee Payment Terms: The Total Licence Fee is payable in the following instalments: (i) 50% on signature hereof and no later than 15 October 2016 ; and (ii) 50% on 30 November 2016 (subject to delivery and technical acceptance of the Materials). Withholding Tax: If withholding tax is payable, the Licensor will send to Licensee a Certificate of Residency at the Licensee’s request. The Licensor hereby directs Licensee to deduct withholding tax on behalf of the Licensor pursuant to such Certificate of Residency in accordance with the requirements of the laws of the Territory, if applicable. |
Licensor Bank Account Details: Payment to be made by electronic transfer to the Licensor's bank account as follows: Hat Trick International Limited, Coutts & Co, London, England, Account number: 00000000, Sort Code: 18-00-91, SWIFT Code: XXXXXX00 |
Materials: Licensor to provide to Licensee with 1 HD digital file (XDCAM) Pal (16:9) with separate M&E texted version with textless elements (where available) and, where available in relation to each Episode of the Programme: - Music cue sheets containing details of the titles of the music, type of use, the publishers and the running times - A reasonable number of colour stills - Synopsis - Post production script - Particulars of the copyright notices and credit requirements (included as part of the delivered Programme) The costs of a file transfer delivery via FTP of €180 (€45 per Episode) shall be borne 100% by the Licensee and payable no later than 15 October 2016. |
Special Terms: 1. In compliance with 47 a) of the Act No. 40/1964 Collection Civil Code as amended 5 a) of the Act No. 211/2000 Coll. On free access to information and on amendments and supplements to certain acts (Freedom of Information Act) Radio and Television of Slovakia is obliged to publish this Contract via the Central Register of Contracts of the Government Office of Slovak Republic in its full wording. 2. It is agreed that Clause 8 (d) of the General Terms and Conditions shall be deleted and replaced with the following: (d) the Licensee shall provide the Licensor upon request with a copy of the Authorised Language versions and access to the master version of the same for the purpose of producing further copies of such Authorised Language versions (such copies to be made at the Licensor’s sole expense). Licensor shall pay Licensee an access fee equal to 50% of the actual out-of-pocket documented costs of producing the Authorised Language versions to access and exploit such version. |
This Agreement consists of this Terms Sheet, General Terms and Conditions and any appendices. In the event of conflict between the Terms Sheet and the General Terms and Conditions, the Terms Sheet shall prevail. | |
Signed for and on behalf of: LICENSOR | Signed for and on behalf of: LICENSEE |
………………………………………………. | ………………………………………………. |
Name _ : | Name _ : |
Position _ : | Position _ : |
Date : | Date : |
PART B - GENERAL TERMS AND CONDITIONS
1. Definitions
1.1 In this Agreement unless the context otherwise requires the following expressions shall have the following meanings (and the singular/plural of such words and expressions shall have the corresponding meaning):
“AVOD Rights” (Advertised Video On Demand): the right to make available the Programme to the public on a VOD basis which allows the user to access and view the Programme via streaming for unlimited playback, in association with advertising and/or sponsorship such that no charge or transaction fee is paid by the viewer.
“Authorised Device”: any devices (including set top unit, personal video recorder (“PVR“), television, games console, Mobile Device, tablet or computer) that has been authorised by the Licensee or its authorised sub-licensees to receive a Licensee-branded service, in compliance with copy control and Territory protection mechanism in line with best current industry practices to prevent any non-personal use, forwarding, copying, storage or other unauthorised uses.
"Basic Charges": (i) charges directly relating to the reception of or provision of access to a distribution service which comprise purchase of equipment; and/or (ii) government licence fees and/or taxes payable by owners of reception equipment in order to receive audio and/or audio- content via such reception equipment.
“Confidential Information”: all information relating to the terms of this Agreement, the Format or to the production of the Programme (including, without limitation, all know-how and trade secrets and all operating, technical, commercial, financial and other information and procedures) and any copies or records, whether presented orally or in writing, in any medium, directly or indirectly disclosed by either Party to the other pursuant to or in connection with this Agreement.
"Catch Up Television": to make the Programme(s) available on a VOD basis (including via streaming and/or temporary downloading to any device, including Mobile Device) for end users to view again during each Licensed Transmission or after each Licensed Transmission ("look back") at a time chosen by the user within a fixed period (as set out in the Terms Sheet) following each Licensed Transmission and where no separate charge is made to the user to view the Programme.
“Download”: the electronic transmission of the Programme to the viewer and intended for use for private viewing only, which may be stored for a permanent or temporary period, as applicable.
"DTO Rights" (Download To Own): the right to make available (or to authorise third parties to make available) to the public by Download via any means for subsequent viewing by the viewer, where such Download (or exported version thereof) may be retained by the viewer on a permanent basis or for an indefinite period for private use only, and without any maximum viewing period applying to limit the duration of the viewer's right to view such Download (or exported version thereof).
“DTR Rights”: the right to make available (or to authorise third parties to make available) to the public for hire or rent, by Download via any means for subsequent viewing by the viewer, where such Download (or exported version thereof) may be stored by the viewer for private use and on a temporary basis only, for no longer than 30 days after the Download was completed and where the viewer has 48 hours from commencement of first viewing to view the Programme an unlimited number of times and where a fee is charged on a per programme/viewing basis (which fee shall be in addition to any Basic Charges or subscription fees).
"Format": the original idea that forms the basis of the Programme, together with all other distinctive elements including, without limitation, any or all of the ideas, concept, structure, setting, characters, character relationships, themes, title, competitions, games, catch-phrases, role of the presenter, the role of any participating members of public, the order in which different parts of the Programme are to run all as evidenced in the Programme.
"Free Cable TV Rights": the right to make available the Programme(s) by means of a linear television programme service by means of a coaxial, fibre-optic or other cable network, without any
charge (other than Basic Charges) being made to the viewer for the right to receive such television programme service by means of such network.
“Free DTT Rights”: the right to make available the Programme(s) on a programme service in digital format (other than a VOD Service) which comprises one or more channels involving the sequential transmission of programmes on each channel and which is delivered by means of a digital over-the- air encrypted signal for reception by means of appropriate receiving equipment and which is provided on terms whereby no charge (over and above Basic Charges) is required for the reception of each channel (or group of channels) comprising such service.
“Free TV Rights”: the right to make available the Programme(s) by terrestrial transmitters or any distribution service (including simultaneous retransmission online or via a cable or satellite service where such transmission is included in a programme service which is transmitted terrestrially but also carried on cable and/or satellite) for television reception without a charge to the viewer for the privilege of viewing the Programme (other than Basic Charges) and includes Free Terrestrial TV Rights, Free Cable TV Rights, Free DTT Rights, Free Satellite TV Rights and any and all other free- to-air means of distribution, but, for the avoidance of doubt, excludes FVOD Rights other than for the purposes of Catch Up Television.
"Free Satellite TV Rights": the right to make available the Programme(s) on a linear broadcast service in analogue or digital form by television wireless telegraphy by means of a telecommunications satellite linked from the Territory and whose signal is intended for direct reception by members of the public without any charge being made to the viewer (other than Basic Charges) for reception of such broadcast service.
"Free Terrestrial TV Rights": the right to make available the Programme(s) in analogue or digital form by wireless telegraphy on television services from and by way of terrestrial transmitters when such transmission is not a satellite transmission but it is intended for reception by members of the public without charge being made to the viewer for reception of such services other than Basic Charges.
"FVOD Rights" (Free Video On Demand): the right to make available the Programme(s) on a VOD basis by means of a free business model where no charge (other than Basic Charges) is made to a viewer for the privilege of viewing the Programme.
"IPTV" (Internet Protocol Television): means a transmission method of the Programme(s) via an internet protocol based television system (via a digital subscriber line, cable and/or fibre-optic broadband or other equivalent technology) and excludes any service delivered by means of an open access network such as the internet. The transmission of a channel in an IPTV system is simultaneous (apart from a possible minor technical delay caused by the transmission technology) with the transmission of that channel in the digital terrestrial network and reception of the channel is strictly limited to the Territory (geo blocked protection system) and solely for viewers subscribing to the IPTV platform.
“Internet Simulcast Rights”: the right to transmit the Programme(s) as part of a simultaneous and unaltered transmission via streaming only of an entire television service for reception via on-line delivery systems over the internet or world wide web in the Territory.
"Mobile Device": means any consumer portable viewing device (including, without limitation, personal digital assistants, mobile phones, tablets or other hand held devices) which is capable of wirelessly sending and/or receiving voice communication together with video and/or data and/or audio communication, which can be uniquely identified, which connects to a communication network via a radio interface, and which can receive the Programme for viewing on such device, in compliance with copy control and Territory protection mechanism in line with best current industry practices to prevent any non-personal use, forwarding, copying, storage or other unauthorised uses.
"OTT Rights" (Over The Top): the right to distribute the Programme free of charge to any end user device using TCP/IP protocols, excluding always a closed, managed proprietary network where the network operator has end-to-end control and management over all elements of that network and provided that such exploitation shall be restricted to any platforms and/or channels that are owned or controlled by the Licensee.
"Pay Cable TV Rights": the right to make available the Programme(s) on a linear television programme service by means of a coaxial, fibre-optic or other cable network, where a specific subscription or charge (over and above Basic Charges) is payable for the right to receive such television programme service by means of such network.
"Pay DTT Rights": the right to make available the Programme(s) on a programme service in digital format (other than a VOD Service) which comprises one or more channels involving the sequential transmission of programmes on each channel and which is delivered by means of a digital over-the- air encrypted signal for reception by means of appropriate receiving equipment and which is provided on terms whereby a separate payment (over and above Basic Charges) is required from a subscriber for the reception of each channel (or group of channels) comprising such service.
"Pay Satellite TV Rights": the right to make available the Programme(s) on a linear television programme service by means of a direct to home satellite (for the avoidance of doubt specifically excluding any satellite-based Internet distribution) whose signal is intended for direct reception by members of the public in the home within the Territory in respect of which such right is held, where a specific subscription or charge (over and above Basic Charges) is payable for the right to receive such television programme service.
“Reverse EPG Rights”: the right to make available the Programme by way of the electronic programme guide for viewing on an on-demand basis by means of streaming or temporary Download on an Authorised Device for up to seven (7) days] following the linear broadcast of the Programme and where no separate charge is made to the user to view the Programme.
"SVOD Rights" (Subscription Video On Demand): the right to make available the Programme(s) on a VOD basis by means of a subscription business model, where subscription revenues give the viewer access to watch the Programme within a catalogue of content.
“Time-Shifted Channel” refers to a second time-shifted version of the Licensed Platform that is identical to the original Licensed Platform and is time-delayed by no more than 2 hours from the original Licensed Platform.
"VAT": Value added tax pursuant to the Value Added Tax Act 1994 (as amended from time to time) or the EU Sixth Directive 77/388 (as amended from time to time) or any similar sales or turnover tax and each like tax from time to time imposed in addition to or in substitution for value added tax.
"VOD" (Video on Demand): to include the Programme in a video-on-demand service by which the Programme(s) is made available on a temporary basis only to the public by means of non-physical electronic copies howsoever delivered (including to a Mobile Device) and is provided either free of charge or where the viewer is required to pay a fee (or subscription) in respect of access to a package of television programmes, whereby the exhibition of the Programme is not pre-determined by the distribution service but is wholly at the viewer’s discretion; and all available programme content is protected by a copy control and Territory protection mechanism in line with best current industry practices to prevent any non-personal use, forwarding, copying, storage or other unauthorised uses. Without limitation, VOD includes AVOD, FVOD and SVOD, but excludes (for the avoidance of doubt) any right to retain a permanent copy of the Programme.
"Working Day": any day other than Saturday, Sunday or a public holiday in England.
1.2 Headings are for ease of reference only and not to be taken into account in construing this Agreement.
1.3 References to Clauses, Schedules and the Parties are, respectively, to clauses of, the Parties to and the Schedules to this Agreement.
1.4 Any covenant by Licensee not to do any matter or thing includes a covenant not to authorise or cause the doing of that act or thing.
2. Grant of Rights
2.1 In consideration of the Licensee’s undertakings contained herein, and subject to the Licensee’s compliance with this Agreement at all times, specifically payment by the Licensee of the Licence Fee in accordance with Clause 4, the Licensor hereby grants to the Licensee the right to exploit the
Rights granted in respect of the Programme(s) in the Authorised Language in the Territory on the Licensed Platform in accordance with the terms of this Agreement.
2.2 The Licensor further agrees that the Licensee shall have the right in the Territory to:
(a) use stills, excerpts and clips from the Programme(s) not exceeding two (2) minutes in duration solely for the purpose of advertising and promoting the exploitation of the Rights granted, subject to any restrictions relating thereto which are notified to the Licensee by the Licensor;
(b) publicise and advertise the Programme(s) either alone or in conjunction with any other Programme(s); and
(c) prepare and distribute synopses of the Programme(s) not to exceed five hundred (500) words for the sole purpose of advertising or promoting the Programme(s).
2.3 The Licensee acknowledges that all rights in the Programme(s), whether now existing or in the future created or discovered and howsoever arising, which are not specifically granted to the Licensee under this Agreement are expressly reserved to the Licensor for its own unrestricted use and benefit (save as may be otherwise provided in this Agreement) and the Licensee shall not assert or represent to any person that it has any right, title or interest in the Programme(s) or any part thereof other than the Rights specifically granted under this Agreement PROVIDED THAT the Licensor agreed that the foregoing is subject to the rights Holdback (if any) as set out in the Terms Sheet.
2.4 The Parties acknowledge that the grant or exercise of any rights which causes or permits reception of the Programme within the Territory by reason of unavoidable overspill of a terrestrial or satellite transmission of the Programme (whether analogue or digital) primarily intended for reception outside the Territory will not constitute a breach of this Agreement.
2.5 The Licensee hereby acknowledges that the Programme may be retransmitted by cable operators in Europe simultaneously with transmissions of the Programme in the United Kingdom and no such cable retransmissions in the Territory shall infringe the Licensee’s rights hereunder or require the Licensee’s consent.
2.6 When Licensee reaches the maximum number of Licensed Transmissions permitted under this Agreement the Term shall forthwith terminate. Licensee’s failure to complete the maximum number of runs on or before the expiry of the Term shall not extend the Term nor shall it relieve the Licensee of its obligation to pay the total Licence Fee nor shall it entitle the Licensee to receive any refund of any proportion thereof.
2.7 The Licensee acknowledges and accepts that the exclusivity provided for under Clause 2.1 shall be subject to the reservation of rights by the Licensor to license the Format to licensees in any territory throughout the world (including the Territory) and any version of the Programme produced by such third party licensee(s) may be distributed throughout the world, including into the Territory, in any language (dubbed or subtitled) including the Authorised Language.
2.8 In the event that the Programme(s) has not been transmitted in the UK before the start date of the Term (as applicable) then the Licensee must delay transmission in the Territory until such time that such Programme has been transmitted in the UK and the Term start date will be adjusted accordingly to compensate for such delay. The Licensor will inform the Licensee as soon as reasonably practicable if the Term start date has to be delayed for any Programme.
2.9 For the avoidance of doubt, the Licensor reserves the exclusive right during the Term to claim and collect revenues from any organisations (such as AGICOA) established for the purpose of collecting and disbursing revenues or levies generated as a result of the re-transmission of, or as a result of any recording (whether private, educational or otherwise) from any television broadcast of the Programme(s) anywhere in the world.
3. Materials
3.1 The Licensor shall, as soon as practicable after signature of this Agreement and conditionally upon the Licensee paying the Licence Fee payment as detailed above use all reasonable endeavours to deliver to the Licensee free and clear of encumbrances, the Materials by the delivery date as agreed
between the Parties. The Materials will be held in the Licensor’s name. In the event that the Licensor fails to deliver the Materials in accordance with this Agreement, the Licensee’s remedies shall be limited to the amount of the Licence Fee paid to the Licensor in respect of the Materials not delivered.
3.2 Unless otherwise specified, the Licensee must approve the Materials as technically acceptable within ten (10) Working Days of delivery and at least fifteen (15) Working Days prior to the first scheduled transmission of the Programme(s). Failure by the Licensee to advise the Licensor within such period of unacceptability of the Materials, in writing shall be deemed acceptance of said Materials by the Licensee. If the Licensee shall give notice to the Licensor that the Materials for the Programme(s) are not technically acceptable such notice shall detail the technical reasons why such Materials are not of acceptable quality and the Licensor shall be entitled during a period of thirty (30) Working Days (and at the Licensor’s cost) to either remedy any deficiencies so notified; or, following the return of the Materials to the Licensor for a quality-check, to terminate this Agreement and to refund to the Licensee the Licence Fee paid for the Programme(s) accordingly.
3.3 Subject as otherwise specified at Clause 3.2, all air freight, courier or other delivery and associated costs, all customs and duty charges incurred in relation to the delivery of the Materials to the Licensee shall be the responsibility of the Licensor and the costs in returning of the Materials to the Licensor shall be the responsibility of the Licensee. For the avoidance of doubt all costs of copying or duplicating the Materials for use by the Licensee shall be the responsibility of the Licensee or as otherwise agreed.
3.4 Unless otherwise agreed by the Parties in writing, all Materials supplied under the terms of this Agreement shall remain the property of the Licensor at all times.
3.5 The Materials on loan shall be held at the Licensee’s risk from the time of delivery until the time they are returned to the Licensor or destroyed in accordance with Clause 12.3 and the Licensee undertakes to pay to the Licensor the cost of replacing any Materials lost or damaged while held by it or held on its behalf or any costs incurred by the Licensor as a result of any failure by the Licensee to return Materials to the Licensor as aforesaid.
3.6 The Licensee shall further use all reasonable care in handling and storing the Materials, including taking reasonable precautions to prevent any unauthorised duplication or reproduction of the Materials and maintaining adequate insurance cover for said Materials.
4. Terms of Payment
4.1 The Licensee shall, in consideration for the licence of the Rights granted and the representations, warranties and indemnities on the part of the Licensor contained in this Agreement, pay or procure payment to the Licensor of the Licence Fee in accordance with the Payment Terms set out in the Terms Sheet.
4.2 All sums payable by the Licensee pursuant to this Agreement shall be made by automatic electronic bank transfer in cleared funds into the bank account (as set out in the Terms Sheet) on or before the due date set out in the Payment Terms and if late shall (without prejudice to any other rights and remedies of the Licensor) be subject to interest at 4% above the base lending rate of Coutts Bank per annum (compounded monthly), calculated from the day payment was due until the day payment was made, and shall further be paid free of any rights of counterclaim or set-off and without any deductions or withholdings whatsoever, save only as may be required by any applicable law.
4.3 If any deductions or withholdings are required by law to be made from any of the sums payable pursuant to this Agreement, the Licensee shall provide the Licensor with all assistance and information as is reasonably requested by the Licensor to enable the Licensor to recover or be credited with the sums so deducted or withheld or to enable the Licensee to avoid or be exempted from (whether in whole or in part) making any such deduction as withholding and this obligation shall include (without limitation) providing the Licensor with a completed certificate of deduction or any other appropriate form (or application).
4.4 All sums payable by the Licensee pursuant to this Agreement exclude any VAT, sales or other taxes which may be charged (if applicable) and such VAT, sales or other taxes shall be payable by the Licensee in addition.
4.5 The Licensee shall not be entitled to commence transmission of the Programme until the Licensor has received payment of the relevant portion of the Licence Fee in accordance with the Terms Sheet.
5. Licensor's Warranties
The Licensor warrants and represents to the Licensee as follows:
(a) that the Licensor has the full right and ability to enter into this Agreement and to give the warranties and representations herein contained;
(b) that insofar as the Licensee has an exclusive licence, subject to the provisions of Clause 2.3, the Licensor has not and will not exploit or authorise third parties to exploit the Programme(s) in the Authorised Language in the Territory by means of the Rights during the Term unless otherwise agreed in writing by the Licensee;
(c) the performing rights in all musical compositions and sound recordings contained in the Programme(s) (i) are controlled by the Performing Right Society Limited ("PRS") and/or an affiliated collection society, or (ii) are in the public domain, or (iii) are controlled by Licensor (it being understood and agreed that Licensee shall be responsible for obtaining and paying for any necessary performing licences required in respect of the use of musical compositions and sound recordings hereunder);
(d) that the Licensor agrees to indemnify the Licensee from and against all costs (including reasonable third party legal costs), claims, loss, damage or proceedings incurred by or directly arising to the Licensee by reason of the breach of any of the warranties granted in this Clause 5 or the representations made by the Licensor contained in this Agreement including, without limitation, any infringement of copyright arising out of the duly authorised transmission by the Licensee of the Programme(s) (but excluding music performing rights).
6. Licensee’s Warranties
The Licensee warrants and represents to the Licensor as follows:
(a) that the Licensee is free to enter into and fully perform its rights and obligations as set out in this Agreement and has not entered and will not enter into any other arrangement, agreement or commitment which could, in the Licensor’s reasonable opinion, affect its obligations under this Agreement;
(b) that the Licensee shall not dub nor licence the dubbing, or subtitle or licence the subtitling, of the Programme(s) or any parts thereof into any language other than the Authorised Language unless specifically agreed in writing in advance by the Licensor;
(c) that the Licensee will give credit to artists, writers and others in all paid advertising and publicity or other marketing of the Programme(s) issued by or on behalf of the Licensee as included in the Materials and/or as notified to the Licensee by the Licensor;
(d) that the Licensee shall notify the Licensor of any infringements or violations in the Territory or elsewhere of any rights referred to hereunder that come to its attention and shall co-operate fully with the Licensor (at the Licensor’s request and expense) to prevent or stop such infringements or violations and obtain redress;
(e) that the Licensee shall not deal with the Materials or any part of them so that any third party acquires any lien or right to possess the same;
(f) that the Licensee shall not by any act or omission impair or prejudice the copyright in the Programme(s) or in any parts of the Programme(s);
(g) that the Licensee will not assign, transfer or sub-lease the Rights without the prior written consent of the Licensor in accordance with Clause 15.2 and the Licensee will not transmit or authorise others to transmit all or parts of the Programme(s) outside the Territory. Should such assignment or sub- licence be agreed by the Licensor in writing this Agreement will be binding on the assignee,
transferee, sub-licensee or agent but will not release the Licensee of any of its obligations under this Agreement;
(h) that the Licensee shall pay all sums payable on account of the public performance of all music contained in the Programme(s) to the PRS or other relevant collecting society;
(i) that the Licensee shall ensure that all programme content is geo-filtered and protected by a copy control and Territory protection mechanism in line with best current industry practices to prevent any non-personal use, forwarding, copying, storage or other unauthorised uses;
(j) that the Licensee shall fully indemnify and agrees to keep fully indemnified the Licensor against all claims, costs, proceedings, demands, losses, damages, expenses (including legal and other professional costs and expenses) and any liabilities howsoever arising incurred by or arising to the Licensor (or the Materials) as a result of any breach or alleged breach of any of the Licensee’s undertakings, warranties or obligations under this Agreement.
7. Editorial Control
7.1 The Licensee shall ensure that the Programme(s) is transmitted in its entirety, although the Licensor accepts that minor editing of up to three (3) minutes in any hour may be necessary, either to comply with local censorship regulations or for the purposes of Programme(s) scheduling, provided always such editing does not substantially alter or detract from the Programme(s) or which might otherwise impair its continuity or integrity. Any editing of more than three (3) minutes duration in any hour shall be subject to the Licensor’s prior written approval.
7.2 In no event shall any product placement, or film or programme material from any other source be added or included in any Programme(s) and similarly the Programme(s) in whole or in part shall not be added to or included in any other film or programme(s) without the Licensor’s prior written approval, such approval to be exercised at the Licensor’s absolute discretion.
8. Translated Versions
In the event that the Licensee is hereby granted the right to exploit the Programme(s) in a language other than English (either by means of dubbing or by sub-titling), the following terms shall apply:
(a) the Licensee shall be solely responsible for the production of such dubbing and/or subtitling and all
costs incurred in connection therewith (including but not limited to payment of all artist’s fees);
(b) the Licensee hereby warrants that the dubbing and/or sub-titling shall be a true and accurate translation of the scripts of the Programme(s) and that such translations shall not include any material that is defamatory of any person or organisation;
(c) the Licensee shall notify the Licensor of the translated title prior to the Licensee making the first transmission of the Programme(s);
(d) the Licensee shall provide the Licensor upon request with a copy of the Authorised Language versions and access free of charge to the master version of the same for the purpose of producing further copies of such Authorised Language versions (such copies to be made at the Licensor’s sole expense).
9. Ownership of the Programme(s)
9.1 Nothing in this Agreement shall give the Licensee any rights in respect of intellectual property rights, including but not limited to trade or service marks and goodwill, in or associated with the Programme(s) or any part thereof and the Licensee hereby acknowledges that, subject to the Licensee's licence to use the same in the course of exercising the Rights granted, it shall not acquire any such rights and that all such rights are, and shall remain, vested in the Licensor (or in its control).
9.2 The Licensee undertakes that the Programme(s) shall be transmitted without any omission, alteration or abbreviation of the copyright notice and the production credits as included in the Materials.
9.3 The Licensor shall own or control the copyright in the Programme(s) and any videotape or other copy, reproduction or embodiment thereof.
9.4 The Licensee shall immediately give written notice to the Licensor of any infringement, or threatened infringement of, or any challenge to the proprietary rights licensed under this Agreement. The Licensor shall take such action as it thinks fit but shall not be obliged to institute or defend any action in respect of such infringement, challenge or use. If the Licensor, in its sole discretion takes action in respect of the same, the Licensee acknowledges that the Licensor shall be solely responsible for the conduct of such action, including its prosecution, defence or settlement, and the Licensee shall make no admission as to liability and shall not agree to any settlement or compromise of any action, and shall at the Licensor's expense (subject to the Licensor's prior written approval of the same) give the Licensor all such assistance as the Licensor may reasonably require in connection with such action.
9.5 Where damages are awarded or otherwise finally obtained in any action for infringement of the Licensor's rights licensed under this Agreement, such damages shall be retained by the Licensor. If the Licensee (with the Licensor's prior approval) has elected to take such action any such amounts shall be shared between the Parties after deduction of each Party's costs of such action.
10. Audit
To the extent (if any) that this Agreement provides for ongoing payments, the Licensor (and its advisers) shall have the right during reasonable office hours and at its own expense, not more than once during each calendar year, to inspect and examine the Licensee’s books and records relating to the exploitation of the Programme(s). In the event that the examination of the records reveals that the payments made by the Licensee to the Licensor are less than the amounts that should have been paid pursuant to Clause 4, the Licensee shall immediately pay to the Licensor the amount of such underpayment together with interest thereon at the rate of 4% above the base lending rate of Coutts Bank per annum (compounded monthly). In the event that the underpayment referred to above is greater than 5% or £500, the Licensee shall further reimburse the Licensor for the costs of the examination undertaken by the Licensor including, but not limited to, the costs of professional advisors retained by the Licensor.
11. Confidentiality
11.1 The terms and conditions of this Agreement are strictly confidential and each Party agrees that it shall not disclose the Confidential Information save for when the Confidential Information is: (i) in the public domain otherwise than in circumstances giving rise to a breach of the terms of the Agreement;
(ii) already known by a Party at the time the said information is disclosed to it by the other Party, provided that such information is documented by records in the receiving Party's possession predating such disclosure; (iii) subsequently received by a Party in good faith (other than from the other Party) from a person who has the prior right to make such subsequent disclosure; or (iv) developed independently by a Party other than from Confidential Information disclosed by the other Party or disclosed in breach of any of the obligations contained in this Agreement.
11.2 Notwithstanding Clause 11.1, either Party may produce or disclose the other Party's Confidential Information as required by applicable law, regulation or court order, or by any regulatory body or stock exchange, provided that the receiving Party has (if reasonably practicable) given the disclosing Party prior written notice of such request such that the disclosing Party has an opportunity to defend, limit or protect such production or disclosure. Each Party shall be entitled to disclose Confidential Information to their professional advisors, employees and sub-contractors on a need-to-know basis only and the Licensee undertakes to procure that its advisors, employees and/or sub-contractors are aware of and bound by this Clause.
11.3 Neither Party shall make any announcement with respect to this Agreement or any ancillary matter without the prior written consent of the other Party, save as required in the circumstances referred to in sub-clause 11.2 and subject to the proviso therein.
12. Termination
12.1 The Licensor shall have the right but not the obligation, to terminate this Agreement at any time by notice in writing, if the Licensee:
(a) shall commit a material or persistent breach of this Agreement and shall fail to remedy any breach capable of remedy within fourteen (14) days after receipt of notice by the Licensor requiring a remedy; or
(b) should suffer the making of an administration order or shall have a receiver (including an administrative receiver) or manager appointed over the whole or any part of its assets or if any order shall be made or a resolution passed for its winding up (except for the purpose of solvent amalgamation or reconstruction); or shall enter into any composition or arrangement with its creditors; or
(c) shall cease or threaten to cease to carry on business or become unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; or
(d) should undergo a change of control within the meaning of section 416 of the Income and Corporation Taxes Act 1988; or
(e) fails to make timely payment to the Licensor of any sums due to the Licensor in accordance with this Agreement and does not remedy such failure within 14 (fourteen) days of receiving notice of non-payment from the Licensor.
12.2 Upon expiry of the Term or termination of this Agreement (for whatever reason) all rights shall immediately revert to the Licensor. Termination shall not affect any accrued rights and obligations of the Parties at the date of termination.
12.3 Upon termination of this Agreement for any reason the Licensee shall erase or destroy the Materials and any other material handed over by the Licensor and all copies thereof and supply the Licensor with an appropriate Certificate of Destruction (as such term is commonly understood in the industry) in respect of the Materials within 14 (fourteen) days of such termination (unless otherwise agreed between the Parties).
13. Programme Withdrawal and Suspension
13.1 The Licensor shall have the right at any time by giving notice in writing to the Licensee to withdraw the Programme in the event that the Programme is unavailable or becomes unavailable for transmission or exhibition and/or the Licensor has been so advised to do so by its legal advisors.
13.2 In the event of withdrawal of the Programme in accordance with Clause 13.1 the Parties shall endeavour to agree on an alternative programme of comparable quality if an alternative programme is available. If no such alternative can be agreed upon in the event of a withdrawal, the Licensee shall have the right to reduce in good faith the Licence Fee payable to the Licensor hereunder by an amount pro rata the number of Episodes of the Programme already transmitted by the Licensee and the Licensee will promptly return to Licensor at Licensor’s expense all Materials relating to the Programme in its possession or under its control.
13.3 Licensor may also temporarily suspend the Licensee’s right to transmit or otherwise exploit the Programme for the reasons set out in Clause 13.1 above and in such event, the Term shall be extended for a period equal to the suspension period. If, within six (6) months of the date of suspension the Licensor notifies the Licensee that the exploitation of the Programme may be recommenced, the Term of the Agreement shall be extended by the duration of such suspension and any remaining Licence Fees shall be paid in full. If the Licensor determines that the exploitation of the Programme cannot be recommenced, the Agreement shall thereupon automatically terminate, whereupon the License Fee shall be reduced by a reasonable proportion (as determined by the Licensor) and the Licensee will promptly return to Licensor at Licensor’s expense all Materials relating to the Programme in its possession or under its control.
13.4
14. Notices
All notices and other communications required to be given under this Agreement shall be in writing and shall be deemed to have been served if delivered by hand or by email on the first Working Day following dispatch, if served by facsimile on the second Working Day following dispatch (evidenced by a valid transmission slip), if sent by courier or registered post, on the second day following dispatch and if sent by airmail, on the seventh Working Day following dispatch. Notices sent to either Party shall be addressed to the receiving
Party at the address set out at the head of this Agreement or such other address as the receiving Party may from time to time notify the other.
15. Assignment
15.1 The Licensor shall be entitled to assign or license the whole or any part of its rights under this Agreement to any third party, and in such event all of the representations, warranties and undertakings on the part of the Licensee contained in this Agreement shall pass to the Licensor’s successors then with effect from the date of such undertaking and the Licensor shall have no further liability to the Licensee.
15.2 The Licensee shall not assign, transfer or sub-licence or in any way dispose of any of its rights or interests hereunder to any third party without the prior written consent of the Licensor (to be given or refused at its absolute discretion) and, in any event, the Licensee shall remain liable to the Licensor for all its obligations hereunder.
16. Force Majeure
Failure by either Party to perform its obligations or delay such performance as a result of an act of God, war, strikes, lockouts, industrial action of third parties, fire, flood, explosion or any other cause beyond its reasonable control (an event of “Force Majeure”) shall not constitute a breach of this Agreement provided that such Party shall have notified the other and use all reasonable endeavours to resume the performance of its obligations as soon as practicable after conditions have returned to normal. Should an event of Force Majeure continue for a period of sixty (60) days or more, then the Party not relying on the Force Majeure event shall be entitled to terminate this Agreement forthwith and the provisions of this Agreement relating to the consequences of termination (Clause 12) shall thereupon apply.
17. Bribery
The Licensor takes bribery and corruption extremely seriously and expect all companies engaged by the Licensor to do so too. The Licensee therefore hereby agrees that it will comply at all times with the Licensor's anti-bribery procedures and policy (as can be found on xxx.xxxxxxxx.xxx) at all times during the term of its engagement with the Licensor. The Licensee further agrees to comply with all laws and regulations relating to anti-bribery and corruption as are applicable to Licensee and/or the Licensor and as may be updated from time to time, including (without limitation) the UK Bribery Act 2010. In particular the Licensee agrees: (i) not to pay or receive any financial incentive in its capacity as employee or agent of the Licensor to or from any third party for the improper performance of an activity that would benefit the Licensee and/or the Licensor and/or the Programme; and (ii) to immediately notify the Licensor if it becomes aware of any payment to or receipt from any third party of any financial incentive which does or could be deemed to represent a bribe by any other person in the employ of or on behalf of the Licensor (including the Licensee).
18. Construction
18.1 This Agreement contains all the terms agreed between the Parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the Parties, whether oral or in writing.
18.2 Save as otherwise expressly provided in this Agreement, no variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the Parties.
18.3 Nothing in this Agreement is intended to nor shall create any partnership or joint venture between the Licensor and the Licensee and, save as expressly agreed in advance in writing, no Party shall hold itself out as the agent of the other.
18.4 This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be an original, but all the counterparts together shall constitute one and the same document. A counterpart signature page of this Agreement executed by a party and sent by facsimile or transmitted electronically in either Tagged Image Format Files (TIFF) or Portable Document Format (PDF) shall be treated as an original, fully binding and with full legal force and effect and the parties hereto waive any right they may have to object to such treatment.
18.5 Except as expressly provided for, this Agreement does not create or infer any rights under the Contracts (Rights of Third Parties) Act 1999 enforceable by any person who is not a party to this Agreement.
18.6 The illegality, invalidity or unenforceability of any provision of this Agreement under any applicable law shall not affect its legality, validity or enforceability under any law of any jurisdiction nor the legality, validity or enforceability of any other provision, and to this end the provisions of this Agreement are declared to be severable.
18.7 Terms of this Agreement which are either expressed so as to survive expiry, variation or termination of this Agreement or from their nature or context it is contemplated that they are to survive expiry, variation or termination, shall remain in full force and effect notwithstanding expiry, variation or termination.
18.8 No waiver whether expressed or implied by either Party of any breach by the other of any of the provisions of this Agreement shall operate as a waiver of any preceding or subsequent breach of the same or any other provision of this Agreement.
18.9 The headings in this Agreement are for information only and do not form part of this Agreement.
18.10 The Licensee agrees to execute any additional instruments or documents reasonably necessary in the judgment of the Licensor to convey, assign and perfect the changes, adaptations and/or modifications to the Programme(s) contemplated under this Agreement, including, but not limited to, an assignment to the Licensor of such rights in and to such changes.
19. Law & Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the Parties submit to the exclusive jurisdiction of the courts of England and Wales, provided that the Licensor shall have the right to commence proceedings as applicant in any court of competent jurisdiction.