Licenčná zmluva na nákup licenčných práv programov
ZM2015237
Licenčná zmluva na nákup licenčných práv programov
(výpis zo zmluvy)
Zmluvní partneri: AARDMAN ANIMATIONS LIMITED
(Spoločnosť s číslom 02050843), ktorá je registrovaná na adrese:
Gas Ferry Road, Bristol, BS1 0XX, Xxxxx Xxxxxxxx
a
ROZHLAS A TELEVÍZIA SLOVENSKA
Mlynská dolina, 845 45 Bratislava
IČO: 47 232 480
IČ DPH: SK2023169973
Štatutárny orgán: Xxxxxxxx Xxxxxx, Generálny riaditeľ
zapísaná: Obchodný register Okresného súdu Bratislava I., Oddiel: Po, Vložka č: 1922/B
Programy: Reprízový animovaný seriál v objeme: 120x7´, 21x1´ Premiérový animovaný seriál v objeme: 30x7´, 15x1´ Premiérový animovaný špeciál v objeme: 1x30´
Práva a definície: Nákup licenčných práv programov pre vysielanie RTVS na televíznych programových službách Jednotka a Dvojka
Trvanie zmluvy: Licenčná doba na 3 roky,
Začiatky licencií sú v rozmedzí od 1.11.2017 do 1.4.2018
Licencia na územie: Povolený jazyk:
Slovenská republika Slovenský - dabing
Počet vysielaní: 3 vysielania vrátane reprízy do 48 hodín
Vysielacie práva: Terestriálne, Free TV práva exkluzívne (digitálne, analógové); terestriálne simultánne vysielanie prostredníctvom satelitu
a kábla. Neexkluzívne Catch-up práva na dobu 7 dní len 5 epizód, pod podmienkou zabezpečenia geo-blokácie
Licenčný poplatok: 14.435, - EUR
Splatnosť licencie: 1. splátka 6.715,- Eur po podpise zmluvy najneskôr do 31.10.2017
2. splátka 7.720,- Eur najneskôr ako 15.2.2018
Podmienky dodania materiálu: Po zaplatení prvej licenčnej splátky
ZM2015237
Technické poplatky za materiál: Technické parametre materiálu: Dátum dodania materiálu:
Materiál bude dodaný bez poplatku.
HDCAM HD 422 50MB MXF, PCM Audio 2 x stereo (original mix & M&E).
Po podpise zmluvy a zaplatení prvej licenčnej splátky.
Prístup k jazykovým verziám:
Ustanovenie o zákonnej povinnosti zverejnenia zmluvy:
za AARDMAN ANIMATIONS LIMITED
Prístup majiteľa licencie k jazykovým verziám možný za poplatok 50% z výrobných nákladov. Špecifikované v bode 12.4. licenčnej zmluvy.
Doplnené v odseku Special Terms.
za RTVS
Xxxxxxxx XXXXXX
Spracovala: Xxxxxxxx Xxxxxxxxxxx V Bratislave, 6.10.2017
ZM?Z?MMMMProgramme Licence Agreement
This Agreement consists of these Deal Terms together with the General Terms set out below and the Schedules attached. In the event of a conflict between the Deal Terms and the General Terms, these Deal Terms shall prevail.
Contract No: | 4379/ZM2015237 |
Dated: |
PARTIES | |
AARDMAN | AARDMAN ANIMATIONS LIMITED (Company No. 02050843), whose registered office is located at Gas Xxxxx Xxxx, Xxxxxxx, XX0 0XX, Xxxxxx Xxxxxxx |
LICENSEE | ROZHLAS A TELEVIZIA SLOVENSKA Public Company established by Act No. 532/2010 and registered at the Business Register of the Bratislava I District Court, Part: Po Insert No. 1922/B, whose registered office is located at Xxxxxxx Xxxxxx, 000 00 Xxxxxxxxxx (Xxxxxx Xxxxxxxx) |
1. Programme(s): | |||||
The following animated television series: | |||||
Series Title | Episodes | Duration (in minutes) | Start Date | Licence Fee | Delivery Date/Relicense |
Xxxxx the Sheep: Series 1 | 40 | 7’ | 01 November 2017 | €3,200 | Relicense |
Xxxxx the Sheep: Series 2 | 40 | 7’ | 01 November 2017 | €3,200 | Relicense |
Xxxxx the Sheep: Series 3 | 20 | 7’ | 15 February 2018 | €1,600 | Relicense |
Xxxxx the Sheep: Series 4 | 20 | 7’ | 15 February 2018 | €1,600 | Relicense |
Xxxxx the Sheep: Series 4.5 | 10 | 7’ | 01 April 2018 | €1,300 | On Signature of this Agreement |
Shaun the Sheep: Series 5 | 20 | 7’ | 01 April 2018 | €2,600 | On Signature of this Agreement |
Mossy Bottom Farm Shorts | 15 | 1’ | 01 April 2018 | €270 | On Signature of this Agreement |
The Xxxxxx’x Xxxxxx | 1 | 30’ | 01 April 2018 | €350 | On Signature of this Agreement |
Championsheeps | 21 | 1’ | 01 November 2017 | €315 | Relicense |
2. Licence Period: | With respect to each Programme Title a period of 3 (Three) years commencing on the Start Date set out above. | ||||
3. Territory: | Slovakia | ||||
4. Language: | In relation to Xxxxx the Sheep series 1,2,3,4 and Championsheeps: The Licensee is entitled to use dubbed versions of the Programme previously created by the Licensee. In relation to Xxxxx the Sheep series 4.5 and 5 – The Programmes have no dialogue and only the opening song requires a dub. The Programmes will be delivered in English and the Licensee shall be permitted to create x Xxxxxxxxx Dubbed version in accordance with instructions given by Aardman and as set out in Clause 12 of this Agreement. The Slovakian logo as agreed in relation to Series 1 is to be used in place of the English logo at all times. In relation to the Mossy Bottom Farm Shorts: This Programme has no dialogue and will be delivered with the English logo and on-screen text. The Licensee is authorised to adapt any and all English on-screen text of the Programme into Slovakian, subject always to the Licensee using the relevant fonts as provided by Aardman. In relation to The Xxxxxx’x Xxxxxx: This Programme has no dialogue and will be delivered with the English logo and on-screen text. The Licensee is authorised to adapt any and all English on-screen text of the Programme into Slovakian, subject always to the Licensee using the relevant fonts as provided by Aardman. | ||
5. Number of Transmissions | 3 runs (with a repeat within 48 hours of initial transmission) | ||
6. Rights: The following rights (each as further defined in Schedule 1): | |||
Television Rights: | Free TV | Satellite, Cable, Terrestrial, Digital | Exclusive |
Channel: | The linear television programme service(s) currently known as: Jednotka/Dvojka | ||
Digital Rights: | Catch-Up | 7 days from each broadcast via the Free TV rights capped at no more than 5 episodes available at a time | Non-exclusive |
In exploiting the Digital Rights the Licensee may make the Programme available on the following Licensee Service(s) via the following Authorised Transmission Means to Authorised Devices for viewing by End Users authorised to access the Licensee Service in the Territory. | |||
Licensee Service(s): | The following Licensee Service(s) currently known as xxx.xxxx.xx which is owned and/or operated by the Licensee. | ||
Authorised Transmission Means: | Simulcasting | In connection with the Free TV Television Rights via the following website: xxx.xxxx.xx | |
Streaming | In relation to Catch-Up rights | ||
Clip Rights: | For the purpose of promotion and advertising of the Programme in exploitation of the Rights via Free TV | Duration: 1 (one) minute | Non-exclusive |
7. Licence Fee: | The total fee of €14,435 (fourteen thousand four hundred and thirty five Euros) split between the Programmes as set out in the Programme box above. |
8. Payment Terms: | (a) The Licence Fee shall be payable as follows: i)€6,715 upon signature of this Agreement and no later than 31 October 2017; and ii) €7,720 no later than 15 February 2018. (b) Payment shall be made in cleared funds into the Bank Account set out in box 9 below. (c) Your invoicing contact at Aardman shall be Xxxxxxx Xxxxx - Xxxxxxx.xxxxx@xxxxxxx.xxx; (d) The Licensee’s invoicing contact shall be Xxxxxxxx Xxxxxxxxxxx – (e) Licensee tax number: SK2023169973 |
9. Bank Account: | Euro Account – details as set out on your invoice |
10. Delivery Date: | With respect to each Programme, the Delivery Date as set out in the Programme Box above |
11. Delivery Materials: | The materials comprising the programme files, scripts, music cue sheets and Promotional Materials to be delivered by Aardman to the Licensee. Delivery Format: HDCAM HD 422 50MB MXF, PCM Audio 2 x stereo (original mix & M&E). For the avoidance of doubt delivery the Delivery Materials will be free of charge subject always to clause 4 of this Agreement. |
12. Delivery Method: | Digital delivery via Signiant Media Shuttle Your contact at Aardman for delivery materials shall be Xxxxxxxxxxx Xxxxx - xxxxxxxxxxx.xxxxx@xxxxxxx.xxx. The Licensee’s contact for delivery materials shall be: Xxxx Xxx – xxxx.xxx@xxxx.xx |
GENERAL | ||
Business Days: | Any day except Saturday and Sunday and those on which banks in England and Slovakia are required by law to be closed. | |
Notice contact details for Licensee: | Address: Attention: Copy to: | Xxxxxxx Xxxxxx, 000 00 Xxxxxxxxxx (Xxxxxx Xxxxxxxx) Xxxxxxxx Xxxxxxxxxxx n/a |
Condition Precedent: | Aardman shall have no obligation under this Agreement and the Licence Period shall not commence unless and until Aardman has received signed copies of this Agreement from the Licensee in a form and substance satisfactory to Aardman. | |
Special Terms: | In compliance with the section 47 a) of the Act No. 40/1964 Collection Civil Code as amended section 5a) of the No.211/2000 Coll. On free access to information and on amendments and supplement to certain acts (Freedom of Information Act), Radio and Television of Slovakia is obliged to publish this Agreement via the Central Register of Contracts of the Government Office of Slovak Republic in its full wording. | |
For the avoidance of doubt, the Agreement shall be redacted as agreed between the parties.
Entered into by the parties below on 2017
For and on behalf of AARDMAN ANIMATIONS LIMITED
For and on behalf of ROZHLAS A TELEVIZIA SLOVENSKA
By: By:
Print Name: Print Name: Xxxxxxxx XXXXXX
Title: Title: General Director
INTRODUCTION
All defined terms shall bear the meanings ascribed to them in the Deal Terms, the Rights definitions (as set out at Schedule 1), or as set out below:
Authorised Device any device that is capable of accessing the Licensee Service in the Territory, receiving digital versions of the Programme, supporting the DRM Technology and playing the Programme including mobile and tablet devices authorised to access the Licensee Service;
Basic Charges (a) charges directly relating to the reception of or provision of access to (as opposed to content of) one or more television services which comprise regular periodic charges or licence fees or purchase of equipment; or
(b) government taxes payable by owners of television receivers to receive the relevant service;
Clip Rights the non-exclusive right to use excerpts from each episode of the Programme as set out in the Deal Terms, limited to the duration and purpose as set out in the Deal Terms;
Deal Terms the deal specific terms attached to these General Terms;
Confidential Information
any information (including, without limitation, in written, oral, visual or electronic form, or on tape or disk) which is not publicly available including, but not limited to, any information specifically designated by the disclosing party as confidential; any information supplied to the disclosing party by any third party in relation to which a duty of confidentiality is owed or arises; and any other information which should otherwise be reasonably regarded as possessing a quality of confidence. This includes know-how and information about design, development, specifications, manuals, instructions, customer lists, sales, marketing, promotion, distribution, business plans, forecasts, and technical or other expertise;
DRM Technology the security and other measures for digital rights management used by the Licensee in relation to this Agreement which is consistent in all material respects with current industry standards;
Dubbed Version a recording of the original version of the Programme dubbed in the language set out in the Deal Terms;
End User a consumer authorised by or on behalf of the Licensee to access the Licensee Service(s);
General Terms these terms and conditions;
Fees the Licence Fee;
Intellectual Property Rights
patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use and protect the confidentiality of; confidential information (including know-how and trade secrets), and all other
intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, also known as IPR.
Licensee Service(s) the digital video services branded by the Licensee as specified in the Deal Terms transmitted via the internet through which authorised End Users may view the Programme via the Licensee’s exploitation of the Digital Rights;
Marks the trade marks, service marks, logos and other distinctive features of Aardman as provided to the Licensee under this Agreement;
Promotional Materials
programme descriptions, metadata, names, logos, trailers and video clips, publicity images supplied by Aardman, programme ratings (e.g., MPAA ratings, TV parental guidelines, etc.) from any applicable industry or government standard ratings bodies, and any other publicity material that may be supplied from time to time by Aardman to Licensee related to the Programme.
Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
References to Clauses and Schedules are to the clauses and schedules of this Agreement, and references to Paragraphs are to paragraphs of the relevant Schedule.
GRANT OF RIGHTS
Aardman hereby grants to the Licensee a licence to exploit the Rights in the Programme on the exclusivity basis set out in the Deal Terms throughout the Territory for the Licence Period and in the Language in accordance with the terms of this Agreement, subject to any holdback and limitations specified in the Deal Terms.
Aardman further agrees that the Licensee shall have the right in the Territory, in connection with the Rights to:
2.2.1. publicise and advertise the Programme in accordance with this Agreement, specifically Clause 8;
2.2.2. the right to use the Marks at the beginning and end of all copies of the Programme and on all publicity materials created by the Licensee and permitted under this Agreement relating to the Programme, to the extent of the Rights under this Agreement.
The Licensee acknowledges that all rights in the Programme, whether now existing or created or discovered in the future and howsoever arising, which are not specifically granted to the Licensee under this Agreement are expressly reserved to Aardman for its own unrestricted use and benefit (including but not limited to the right to exploit clips and/or excerpts of the Programme separately from the Programme by whatever means) and the Licensee shall not assert or represent to any person that it has any right, title or interest in the Programme or any part thereof other than the Rights specifically granted under this Agreement. As between Aardman and the Licensee, the Licensee retains all rights, title and interest in and to the Licensee Services and the DRM Technology.
LIMITATIONS ON EXPLOITATION
The Licensee shall ensure that any exploitation of the TV Rights within the Territory is restricted to broadcast via encrypted signals that can only be viewed on television sets through the use of decoders
licensed by the Licensee within the Territory (i.e. “geo-filtered”) to prevent reception of the Channel outside the Territory.
Aardman does not grant exclusivity protection (whether terrestrial, cable or satellite) against incidental reception in the Territory of an overspill transmission of the Programme originating outside the Territory. The Licensee agrees that the occurrence of such an overspill transmission shall not constitute a breach of this Agreement provided that such transmissions are intended for primary reception outside the Territory.
For the avoidance of doubt, any exploitation of the Rights that could be receivable outside the Territory are limited to:
3.3.1. secure transmissions within the Territory which can only be accessed by customers authorised by the Licensee or if applicable its sub-licensees;
3.3.2. exploitation methods which incorporate technological safeguards that prevent copying or downloading the Programme as a whole and prevent recopying or retransmission of the copy of the Programme delivered to the viewer other than as a Dubbed Version; and
3.3.3. exploitation methods which provide for effective collection of revenues from viewers.
The Licensee shall not seek, nor allow its sub-licensees (if applicable) to seek, customers for the Rights exploited via the internet outside the Territory and, unless required to do so by law, the Licensee shall not make the Programme available to customers outside the Territory by means of internet delivery.
The Licensee’s exploitation of the Rights via the Licensee Service shall be subject to the additional terms
and conditions set out at Schedule 2.
DELIVERY MATERIALS
Aardman shall deliver the Delivery Materials via the Delivery Method set out in the Deal Terms by the Delivery Date (or within fourteen days of full execution of this Agreement, if later). Delivery is conditional on Aardman being in receipt of a fully executed copy of this Agreement. In the event that Aardman fails to deliver the Delivery Materials in accordance with this Agreement, the Licensee’s remedies shall be limited to the amount of the Licence Fee paid to Aardman in respect of the Delivery Materials not delivered.
Xxxxxxx’x receipt of the delivery system’s automated email confirming to Aardman that the Delivery Materials have been successfully downloaded shall constitute due delivery in the case of digital delivery. If physical delivery is required delivery to the delivery address provided to Aardman shall constitute due delivery.
The Licensee shall examine the Delivery Materials as soon as possible and in any event within 20 Business Days of Delivery. Any faults shall be notified to Aardman in writing. If the Licensee fails to notify Aardman of any faults or defects in the Delivery Material within 20 Business Days of Delivery the Delivery Materials shall be deemed accepted.
All costs, customs and duty charges incurred in relation to the delivery of the Delivery Materials to the Licensee shall be the responsibility of Aardman unless otherwise set out in the Deal Terms. All costs, customs and duty charges incurred in relation to the return of any Delivery Materials shall be the responsibility of the Licensee.
Legal title to all Delivery Materials will remain with Aardman, subject to the Rights under this Agreement during the Licence Period however, the Licensee shall bear all risks of loss, theft, destruction of or damage to the Delivery Materials whilst they are in the Licensee’s possession.
The Licensee shall further use all reasonable care in handling and storing the Delivery Materials, including taking reasonable precautions to prevent any unauthorised duplication or reproduction of the Delivery Materials and maintaining adequate insurance cover for the Delivery Materials, in accordance with Xxxxxxx’x reasonable requests.
This Clause 4 shall also apply to any substitute materials supplied by Aardman following the Licensee’s
notice of any fault or defect in the Delivery Materials.
PAYMENT
The Licensee shall pay to Aardman the Fees in accordance with the payment terms set out in the Deal Terms. Timely payment of all sums is of the essence of this Agreement. The Licensee shall not cross- collateralise, set-off, diminish or delay payment of the Fees, unless otherwise agreed in the Deal Terms.
The Licensee agrees and acknowledges that the Licensee’s failure to exploit the Rights shall not entitle the
Licensee to avoid payment of all or part of the Fees.
All sums due to Aardman from the Licensee under this Agreement shall be made available in cleared funds into the relevant bank account as notified to the Licensee by Aardman or as otherwise set out in the invoice.
Any sums not paid in accordance with sub-clause 5.1 (without prejudice to any other rights and remedies of Aardman) may be subject to interest on the overdue amount at the rate of 3% per annum above Coutts & Co’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Licensee shall pay the interest together with the overdue amount.
It is agreed that the Licensee shall be responsible for all taxes, including but not limited to, all local taxes, sales tax and withholding tax.
If any deduction or withholding is required by law to be made from any of the sums payable under this Agreement, the Licensee shall use its best endeavours to minimise such withholding by executing appropriate claims for exemption and/or relief and assisting Aardman in processing such claims or shall otherwise supply Aardman with a certificate evidencing such deduction.
LICENSEE OBLIGATIONS AND RIGHTS
The Licensee shall:
6.1.1. comply with all applicable laws in performing its obligations and exercising the Rights under this Agreement;
6.1.2. exploit the Programme to the best of its skill and ability and actively promote and distribute the Programme (as required for the exploitation of the Rights);
6.1.3. shall use the best available practices and systems applicable to the use of the Programme in exploiting the Rights under this Agreement to:
a) enforce the territorial and use restrictions of this Agreement; and
b) prevent, and take prompt and proper remedial action against, unauthorised access, copying, modification, storage, reproduction, display or exploitation of the Programme.
The Licensee shall not:
6.2.1. change, amend or develop the Programme in any way without Xxxxxxx’x prior written consent
or as set out in this Agreement;
6.2.2. make false or misleading representations with regard to Aardman or its licensors or the Programme;
6.2.3. enter into any contract or engage in any practice detrimental to the interests of Aardman and/or its licensors and/or the Programme; or
6.2.4. register nor seek to register the copyright or any trade mark or service mark in respect of the Programme, the Programmes title or any of the characters within the Programme.
MARKS AND PROMOTIONAL MATERIALS
Marks will be provided to the Licensee in a form pre-approved by Aardman for the uses specified in this Agreement. The Licensee shall submit for Xxxxxxx’x written approval:
7.1.1. an example of the Licensee’s use of the Marks;
7.1.2. samples of all Licensee promotional and marketing material carrying the Marks,
in each case prior to the same being used in any way by the Licensee. The Licensee shall comply with any
of Xxxxxxx’x requests for changes in respect of the same.
The Licensee shall not amend, edit or in any way modify the Marks and the Licensee’s use of the Marks and Promotional Materials shall not deviate in any way from the approved use. Immediately upon notice from Aardman the Licensee shall remove the Marks from its services and/or any promotional and marketing materials. The Licensee shall not be entitled to claim any consequential damages including “lost profits” from any such withdrawal.
ADVERTISING
The Licensee is permitted to include commercial advertising and the like material before and/or after the Programme in exploitation of the Free TV Rights on the Licensee Service (but not during any break in the episodes of the Programme).
The Licensee acknowledges that no commercial sponsorship shall be included before, during and/or after the Programme in exploitation of any Rights.
In relation to such permitted advertising the Licensee:
8.3.1. undertakes to ensure that the advertising, publicity and marketing is suitable for the target audience of the Programme and as such shall not reduce or diminish the reputation, image and prestige of the Programme, specifically the Licensee shall not include in the search results, playback pages, preview pages or any part of the Licensee Service in relation to the Programme advertising that contains or promote alcohol, tobacco, firearms, personal hygiene products, pornography, contraceptives, sexually orientated products, intimate apparel, pharmaceuticals, lotteries and/or gambling;
8.3.2. shall not use the Programme, Marks or the Promotional Materials to suggest any endorsement by Aardman or its licensors of any product, the Licensee Service, organisation or any third party;
8.3.3. shall bear the costs of all advertising and promotion of the Programme in the Territory; and
8.3.4. will provide Aardman with sufficient information regarding the appearance of such advertising around the Programme to enable Aardman to approve or refuse the same in advance of such advertising being placed.
Aardman shall have the right to use any advertising and publicity materials produced by the Licensee under this Agreement free of charge. At Aardman’s request, the Licensee shall provide copies of such materials to Aardman and shall submit a detailed statement of the actual cost of providing such copies.
Following a request from Aardman to remove certain advertisements that are not in accordance with this Agreement the Licensee shall remove such ads from around the Programme and/or playback pages, preview pages or channels that relate to or incorporate the Programme. The Licensee shall not be entitled to claim any consequential damages including “lost profits” from any such withdrawal.
QUALITY AND EDITORIAL CONTROL
Aardman shall notify the Licensee of the standards of quality and specifications which shall be adopted by the Licensee in the promotion and exploitation of the Programme and the Licensee undertakes to comply with these standards and specifications. Aardman shall give the Licensee written notice of any
modifications or changes to the standards of quality or specifications, and the Licensee shall implement any modification or change as soon as reasonably practicable.
The Licensee shall transmit the Programme in its entirety and without Xxxxxxx’x prior written approval the Licensee shall not cut, dub, subtitle or edit the Programme or change the title of the Programme in any manner other than for the sole purpose of:
9.2.1. censorship;
9.2.2. creating the Dubbed Version;
9.2.3. meeting broadcasting standards or broadcasters’ timing requirements; and
9.2.4. the interpolation of advertising breaks during the television, cable or similar exhibition of the Programme
In no event shall any film or programme material from any other source or any product placement be added or included in the Programme without Aardman’s prior written approval, such approval to be exercised at Aardman’s absolute discretion.
For the avoidance of doubt, Aardman makes no warranty that the title of the Programme is available for use in the Territory nor that use of the title will not give rise to any claims. In addition, Aardman does not make any warranty that the Programme:
9.4.1. is suitable for broadcast taking into account the moral/cultural standards applicable in the Territory; or
9.4.2. complies with regulatory guidelines concerning the content and broadcast of television programmes within Territory.
The Licensee agrees that it must rely on its own legal enquiries in relation to all the above matters.
All rights, including rights of copyright, in any edited versions of the Programme (whether edited in accordance with this Clause 9 or otherwise are hereby assigned (where appropriate by way of present assignment of future copyright) so that such rights shall become the sole and exclusive property of Aardman.
INFRINGEMENT
Each party shall promptly notify the other of any actual or suspected infringement of the Programme within the Territory that comes to its attention (Infringement).
The Licensee shall co-operate fully with Aardman by taking all steps required by Aardman (in its sole discretion) in connection with any Infringement, including, without limitation, legal proceedings in the name of Aardman or in the joint names of the parties. Aardman shall be responsible for the cost of any legal proceedings it requires, and is entitled to any damages, account of profits and/or awards of costs recovered. The Licensee shall use its best endeavours to assist Aardman in any legal proceedings relating to any Infringement.
WITHDRAWAL OF CONTENT
In the event that Aardman in its reasonable discretion determines that:
11.1.1. the Licensee’s exploitation of the Programme might infringe upon the rights (including but not limited to the Intellectual Property Rights) of any third party or in the event of any allegation by a third party of infringement of such rights or if Aardman has reason to believe that an allegation of infringement may be made by a third party as a result of such exploitation;
11.1.2. it no longer has, or it considers that it may no longer have, all requisite rights to permit the
Licensee’s distribution of the Programme in accordance with this agreement;
11.1.3. the Licensee’s distribution of the Programme, in whole or in part, might violate any law, regulation, court order or other ruling of any governmental, judicial or regulatory body or cause the Aardman to suffer any loss or liability; or
11.1.4. there is any other bona fide legal or commercial reason (in Xxxxxxx’x discretion),
and gives written notice to the Licensee to such effect, the Licensee shall immediately withdraw the Programme from any scheduled broadcast or from the Licensee Service (as directed by the Licensee) and cease to exploit the Rights. The Licensee shall not be entitled to claim any consequential damages, including “lost profits”, arising from any withdrawal.
Aardman shall at its sole discretion either:
11.2.1. offer to supply a substitute programme of comparable quality which the Licensee shall be entitled to accept or reject; or
11.2.2. adjust the Licence Fee having regards to the rights already exercised by the Licensee at the date of withdrawal.
CREATING A DUBBED VERSION
The Licensee is entitled to create the Dubbed Version in accordance with this Clause 12.
The Licensee shall be solely responsible for the production of the Dubbed Versions and all costs incurred in connection with its creation (including but not limited to payment of all artist’s fees).
The Licensee hereby warrants that the Dubbed Version shall be a true and accurate translation of the scripts of the Programme and that such translations shall not include any material that is defamatory of any person or organisation.
Aardman (and their licensees and assigns) shall have the right to acquire a licence to use the Dubbed Version at no cost. Aardman (and their licensees and assigns) shall have the right to acquire a licence to use the Dubbed Version for a separately agreed specific use upon payment of one-off fee of a maximum of fifty percent (50%) of the original dubbing cost. In such case the Licensee shall submit to Aardman the original dubbing invoice or a detailed statement of the actual dubbing costs.
Both parties shall enter into a new licence agreement granting Aardman the right to use, or license third parties to use, the Dubbed Version in all media now known or hereafter invented and specifying the fee (if any) payable by Aardman. The IPR of the Dubbed Version will be the property of Aardman, it being understood between the parties that after termination or expiration of the Licence Period the Dubbed Version shall continue to be exploited by Aardman and/or a third party designated by them, under the separate licence agreement.
OWNERSHIP OF THE PROGRAMME
Nothing in this Agreement shall give the Licensee any rights in respect of the IPR, including but not limited to trade or service marks and goodwill, in or associated with the Programme or any part thereof, and the Licensee hereby acknowledges that, subject to the Licensee's limited licence to use the same in the course of exercising the rights hereby granted, it shall not acquire any such rights and that all such rights are, and shall remain, vested in Aardman.
Aardman shall own or control the copyright in the Programme and any tape or other copy, reproduction or embodiment thereof.
Aardman has the sole and exclusive right to collect and receive any and all revenues and income relating to broadcasts, retransmissions, copying, communications of copies, rentals and lendings, performances and exhibitions (or any other form of exploitation which is collectively managed by audio-visual rights
societies) of the Programme which are distributed by audio-visual rights societies anywhere in the Territory prior to, during and/or after expiry of the Term.
CLEARANCES, MUSIC PERFORMANCE RIGHTS AND MECHANICAL ROYALTIES
The Licensee shall obtain and pay for all licences and make all returns required for the public performance, mechanical reproduction and other exploitation of the music incorporated in the Programme in accordance with the rights licensed under this Agreement due to PRS, SOCAN, MCPS or related and/or comparable collecting societies and the Licensee hereby indemnifies Aardman against any and all liability, loss, damage, or expense arising from the performance, mechanical reproduction or other exploitation of such music. For the avoidance of doubt no costs incurred by the Licensee pursuant to this Clause 14 shall be recoupable from the Fees.
CREDITS AND NOTICES
The Licensee warrants and undertakes to Aardman that:
15.1.1. the Programme shall be transmitted without any omission, alteration or abbreviation of the credits as supplied by Aardman; and
15.1.2. it will include such other credits in the Programme as Aardman may reasonably require from time to time.
WARRANTIES AND LIABILITY
The Licensee warrants and represents to Aardman as follows:
16.1.1. it 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 Aardman’s reasonable opinion, affect its obligations under this Agreement;
16.1.2. it shall not dub nor licence the dubbing, or subtitle or licence the subtitling unless otherwise permitted under this Agreement;
16.1.3. it will ensure that the Programme complies with all regulatory guidelines relating to the broadcast and transmission of television programmes applicable in the Territory;
16.1.4. it shall not deal with the Delivery Materials or any part of them so that any third party acquires any lien or right to possess the same;
16.1.5. it shall not by any act or omission impair or prejudice the copyright in the Programme or in any parts of the Programme, shall not use any clips or sequences from Programme in other programmes (or other episodes of the Programme), shall not include any material from any other source in any episode of the Programme and shall not use the Programme in any manner which may bring Aardman or the producer of the Programme into disrepute or which may defame any person; and
16.1.6. that the Licensee will not assign, transfer or sub-lease the Rights without the prior written consent of Aardman in accordance with clause 23.1 and the Licensee will not transmit or authorise others to transmit all or parts of the Programme outside the Territory. Should such assignment or sub-licence be agreed by Aardman 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.
The Licensee agrees to indemnify, defend, and hold harmless Aardman, its parents, affiliates, subsidiaries, employees, directors, officers, agents, successors, assigns and licensees, and each of them from and against all third-party claims, costs, damages, losses, liabilities, fines, penalties, and expenses (including without limitation reasonable attorneys’ fees) arising as a result of or in connection with any breach or alleged
breach by the Licensee of its covenants, representations, or warranties set forth herein. Aardman will promptly notify the Licensee in writing of any claim for indemnification or related proceeding, provided that failure to give such notice will not relieve Licensee of any liability hereunder except to the extent that Licensee has suffered actual material prejudice by such failure. Aardman will give the Licensee sole control over all proceedings or negotiations in connection with such claims and reasonable assistance requested by Licensee in connection with the foregoing claims. The Licensee will reimburse Aardman for its out-of- pocket expenses in providing such assistance. Aardman may participate in the defense of the claims for which it is indemnified hereunder with counsel of its own choosing, at its own cost and expense.
Aardman shall indemnify the Licensee against all claims and direct losses (specifically excluding any indirect or consequential losses such as, but not limited to, loss of profits, loss of revenue, loss of business depletion of goodwill and/or similar losses) and any costs and expenses (including reasonably and verified legal costs) awarded against, in judgment by a court of competent jurisdiction, or incurred or agreed (with Xxxxxxx’x prior written consent) to be paid in an out of court settlement by the Licensee as a result or in connection with any actual substantiated claims of infringement by any third party of their Intellectual Property Rights as a result of the Licensee’s use of the content in accordance with this Agreement.
CONFIDENTIALITY AND DATA PROTECTION
Aardman and the Licensee both warrant and represent that they will keep confidential all Confidential Information disclosed to them by the other party.
The obligations of confidentiality in this Clause 17 will not apply to any matter that:
17.2.1. is in, or has become part of, the public domain other than as a result of a breach of the obligations of confidentiality under this agreement or any other obligations of confidentiality;
17.2.2. was independently disclosed to it by a third party entitled to disclose the same; or
17.2.3. was already known to the recipient before receipt from the other party.
Both parties must establish and maintain such security measures and procedures as are reasonably practicable to provide for the safe custody of the Confidential Information.
Each party will only store, copy or use the other's Confidential Information to the extent necessary to perform its obligations under this Agreement.
Each recipient may disclose Confidential Information as may be required by law, regulation or order of a competent authority to be disclosed, or as reasonably required to be disclosed to a professional adviser of the recipient, provided that, to the extent practicable in the circumstances, the disclosing party is in each case given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same to the owner of such Confidential Information.
If any part of either party's Confidential Information ceases to be required by the other for the performance of its obligations under this Agreement, such data must be returned to the other party or, upon that party's written request, destroyed.
Both parties shall, during the Licence Period of this Agreement, comply with all applicable Data Protection Legislation. Both parties understand and acknowledge that they may come into possession of personal data (as defined by the Data Protection Act 1998) under the control of the other party (Data Controller). The recipient of such data warrants that, to the extent that performance of its obligations hereunder involves or necessitates the processing of such personal data, it shall act only on and in accordance with the instructions and directions of the Data Controller.
Both parties shall take and implement all such technical and organisational security procedures and measures necessary or appropriate to preserve the security and confidentiality of any personal data they control or process under or in connection with this Agreement.
Neither party may make any news, release or public announcement regarding or referencing this Agreement, its value, or its terms and conditions, or in any manner advertise or publish the fact of this Agreement with the written consent of the other party.
TERMINATION
Aardman shall have the right but not the obligation, to terminate this Agreement at any time by notice in writing, if the Licensee:
18.1.1. commits a material breach of this Agreement that is incapable of remedy; or
18.1.2. commits a material breach of this Agreement which is capable of remedy, but fails to remedy such breach within fifteen (15) days after receipt of notice by Aardman requiring a remedy; or
18.1.3. suffers 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
18.1.4. ceases to carry on business or is or becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986.
For the purposes of clause 18.1.1 and 18.1.2 a “material breach” means a breach (including an anticipatory breach) which is not minimal or trivial in its consequences to Aardman. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding. Without limitation, the non-payment of the Fees or an instalment of the Fees shall constitute a material breach which will entitle Aardman to terminate this Agreement and retain all sums paid to Aardman prior to such breach. In addition, upon any termination of this Agreement by Aardman pursuant to this Clause 18, any and all instalment Fees shall automatically become accelerated, due and payable.
Upon expiry of the Term or termination of this Agreement (for whatever reason) all Rights shall immediately revert to Aardman.
Upon termination of this Agreement for any reason the Licensee shall consult with Aardman as to the return to Aardman (or such other person or destination as Aardman shall direct), erasure or destruction of the Delivery Materials and any other material handed over by Aardman or under its instructions to the Licensee relating to the Programme and the Licensee shall fulfil Aardman’s requirements within fourteen
(14) days of being so directed.
NO PARTNERSHIP
Nothing in this Agreement is to be deemed to constitute a partnership, joint venture or employer employee relationship between Aardman and the Licensee.
NOTICES
All notices under the terms of this Agreement must be given in writing and sent by registered mail or facsimile transmission with machine confirmation or must be delivered by hand to the following addresses:
20.1.1. Licensee: as set out in the Deal Terms
20.1.2. Aardman:
Address: Gas Xxxxx Xxxx, Xxxxxxx, XX0 0XX, Xxxxxx Xxxxxxx Fax: x00 (0)000 000 0000
Attention: Xxxxx Xxxxxxxxxxx, Business Affairs Manager
All notices will be presumed to have been received when hand delivered, five Business Days of mailing of the notice by registered mail, or upon receipt of a successful facsimile transmission delivery receipt.
THIRD PARTY RIGHTS
Save as provided at Clause 23.2 below, the parties do not intend to confer any benefit on a third party and do not intend that any third party should have any right to enforce this Agreement. Without limiting the above, a person who is not a party to this Agreement has no rights under The Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any rights or remedies available to a third party which exist or are available under that Act or otherwise.
NO WAIVER
Any waiver (whether express or implied) of any breach of any term of this Agreement shall not be construed as a waiver of or consent to any preceding or succeeding breach on the part of either party of the same or any other term and no breach of this Agreement may be waived or discharged except with the express consent in writing of Aardman.
ASSIGNMENT AND NOVATION
This Agreement is personal to and for the sole benefit of the Licensee and the Licensee shall not assign, transfer, sub-license, sub-distribute, mortgage, charge or in any way dispose of any of its rights, interests or obligations under this Agreement to any person or organisation without the prior written consent of Aardman (to be given or refused at its absolute discretion).
Aardman shall be entitled to assign or license the whole or any part of its rights under this Agreement and in such event all of the representations, warranties and undertakings on the part of the Licensee contained in this Agreement shall pass to Xxxxxxx’x successors, with effect from the date of such undertaking Aardman shall have no further liability to the Licensee.
COMPLIANCE WITH ANTI-BRIBERY LAWS
The Licensee shall:
24.1.1. comply with all applicable laws, statutes and regulations relating to anti-bribery and anti- corruption (Relevant Requirements);
24.1.2. have and shall maintain in place throughout the term of this Agreement its own policies and procedures to ensure compliance with the Relevant Requirements and will enforce them where appropriate;
24.1.3. promptly report to Aardman any request or demand for any undue financial or other advantage of any kind received by the Licensee in connection with the performance of this Agreement;
24.1.4. within 12 months of the date of this Agreement, and annually thereafter, certify to Aardman in writing signed by an officer of the Licensee, compliance with this Clause 24, its associates and any directors, officers, employees, or servants. The Licensee shall provide such supporting evidence of compliance as Aardman may reasonably request.
The Licensee shall ensure that all of its sub-agents and sub-contractors who perform services in connection with this Agreement do so only on the basis of a written contract which imposes on and secures from such persons terms equivalent to those imposed by Aardman in this Clause 24 (Relevant Terms). The Licensee shall be responsible for observance and performance by such persons of the Relevant Terms and shall be directly liable to Aardman for any breach by such persons of any of the Relevant Terms.
Breach of this Clause 24 shall be deemed a material breach of this Agreement.
FORCE MAJEURE
Neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labour disputes, strikes, lockouts, war, terrorism, riot, acts of God or government action (Event), and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing. Notwithstanding the foregoing, should an Event continue for a period beyond 30 (thirty) days, the non-affected party shall be entitled to terminate this Agreement upon notice to the affected party.
INADEQUACY OF DAMAGES
Without prejudice to any other rights or remedies that Aardman may have, the Licensee acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this Agreement by the Licensee. Accordingly, Aardman shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Agreement.
FURTHER ASSURANCE
The Licensee agrees to execute any additional instruments or documents reasonably necessary in the judgement of Aardman to convey, assign and perfect the changes, adaptations and/or modifications to the Programme contemplated under this Agreement.
SEVERABILITY OF PROVISIONS
If any term or provision of this Agreement shall be held by a court of competent jurisdiction to be illegal or unenforceable in whole or in part under any enactment or rule of law such term or provision or part shall to that extent be deemed not to form part of this Agreement but the other parts of this Agreement shall remain in full force and effect and the parties shall endeavour to agree such amendment as will (to the extent possible) give full effect to their intentions as expressed in this Agreement.
AMENDMENT
All amendments of this Agreement shall be in writing and executed by both parties. No trade usage or other regular practice or method of dealing between the parties may modify, interpret, supplement or alter in any manner the express terms of this Agreement.
ENTIRE AGREEMENT
This Agreement embodies all the terms agreed between the parties relating to the Programme and no oral representations statements inducements warranties or promises by either party shall be binding and valid and this Agreement shall not be enlarged modified or altered except by separate agreement in writing signed by both parties.
DISPUTE RESOLUTION
If any dispute arises in connection with this Agreement, directors or other senior representatives of the parties with authority to settle the dispute will, within 30 days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.
If the dispute is not resolved at that meeting, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure and the mediation will start, unless otherwise agreed between the parties, within 28 days of one party issuing a request to mediate to the other. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. The mediation will take place in England and the language of the mediation will be English. The Mediation Agreement referred to in the Model Procedure shall be governed by, and construed and take effect in accordance with, the substantive law of England and Wales. If the dispute is not settled by mediation within 14 days of commencement of the mediation or within such further period as the parties may agree in writing, the dispute shall be referred to arbitration. CEDR shall be the appointing body and
administer the arbitration. CEDR shall apply the UNCITRAL rules in force at the time the arbitration is initiated.
The commencement of a mediation or arbitration shall not prevent the parties commencing or continuing court proceedings.
GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by English Law and the parties hereby submit to the exclusive jurisdiction of the English Courts.
COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf" format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or ".pdf" signature page were an original thereof.
SCHEDULE 1
Rights Definitions
Free TV
TELEVISION RIGHTS
Cable Delivery of the Programme to viewers via a cable television service in the Territory viewable by appropriate non-portable television apparatus through the use of a decoding device. This service is delivered without a specific charge over and above the Basic Charges.
Satellite Delivery of the Programme to viewers in any form by means of a telecommunication satellite whose signal is intended for direct reception by viewers in the home within the Territory to be delivered on terms without charge over and above any Basic Charges.
Digital Delivery of the Programme to viewers in digital form by wireless telegraphy on television services from and by terrestrial transmitters when such transmission is not a satellite transmission but is intended for reception by appropriate non- portable television apparatus to members of the public. This service is receivable by the viewer without charge, other than the Basic Charges.
Terrestrial Delivery of the Programme to viewers in analogue form by wireless telegraphy on television services from and by terrestrial transmitters when such transmission is not a satellite transmission or encrypted for reception by appropriate non- portable television apparatus to members of the public. This service is receivable by the viewer without charge, other than the Basic Charges.
DIGITAL RIGHTS
Catch-Up Delivery of the Programme to End Users by the Licensee Service on the terms set out in the Deal Terms, whereby the viewer can view the Programme at any time for the period as set out in the Deal Terms where no charge is made to the viewer (over and above the Basic Charges). This shall exclude making all episodes of Programme available to the viewer at one time (i.e. series stacking) and any so-called “download to own” rights.
AUTHORISED TRANSMISSION MEANS
Simulcasting Transmission of the Programme via the internet to a consumer for simultaneous reception with its transmission on the Channel and viewing by such consumer by means of an Authorised Device with effective technological measures sufficient to prevent the Programme from being stored by the End User (other than
temporarily in a cache for the purposes of rendering the same visible and/or audible during such simultaneous transmission.
Streaming Transmission of the Programme by means of the internet and viewing by such consumer by means of an Authorised Device with effective technological measures sufficient to prevent the Programme from being stored by the End User (other than temporarily in a cache for the purposes of rendering the same visible and/or audible during such stream.
SCHEDULE 2
Exploitation of the Digital Rights via the Licensee Service
The Licensee’s exploitation of the Digital Rights via the Licensee Service shall be subject to the following terms and conditions:
1. OBLIGATIONS IN RELATION TO THE LICENSEE SERVICE
1.1. The Licensee shall actively promote and distribute the Programme to End Users and provide all necessary customer support and server maintenance subject always to the terms of this Agreement.
1.2. The Licensee shall ensure that the Programme is kept secure and transmitted to End Users in an encrypted form (where necessary), and shall use the best available practices and systems applicable to the use of the Programme in exploitation of the Digital Rights via the applicable Authorised Transmission Means to:
1.2.1. enforce the territorial and use restrictions of this Agreement; and
1.2.2. prevent and take prompt and proper remedial action against, unauthorised access, copying, modification, storage, reproduction, display or distribution of the Programme.
1.3. The Licensee shall not:
1.3.1. make the Programme available to End Users outside the Territory;
1.3.2. make representations, warranties or guarantees to End Users and/or other third parties with respect to the specifications, features or capabilities of the Programme that are inconsistent with the terms of this Agreement or any other information provided by Aardman;
1.3.3. permit any carrier to exploit the Programme (or any part thereof) via the Licensee Service until such time as the carrier has agreed in writing to be bound by the terms, conditions and restrictions contained within this Agreement.
1.4. The Licensee will only make the Programme available for distribution on the Licensee Service during the applicable Programmes availability period as set out in the Deal Terms.
1.5. The Licensee shall not be entitled to distribute or market the distribution of the Programme:
1.5.1. in any bundle of Programme without the prior written approval of Aardman, such approval not to be unreasonably withheld or delayed;
1.5.2. in any bundle with third-party content or services without the prior written approval of Aardman, such approval not to be unreasonably withheld or delayed;
1.5.3. as an alternative to the purchase or rental of other media on which the Programme may be available (for example, "do not buy "X" DVD because the content is available on our service"); or
1.5.4. in any manner other than on an individual, stand-alone, clip-by-clip or title-by-title basis (for example, the Licensee may not distribute as a feed or string of clips).
1.6. The Licensee or its customers will be responsible for and pay all applicable sales or use taxes that arise directly from sale of the Programme to End Users and/ or from advertiser content placed on the Licensee Service.
1.7. If the Licensee becomes aware of any misuse of any Programme or any security breach in connection with this Agreement that could compromise the security or integrity of the Programme or otherwise adversely affect Aardman, the Licensee shall, at the Licensee’s expense, promptly notify Aardman and fully cooperate with Aardman to remedy the issue as soon as reasonably practicable. Aardman may suspend the Licensee’s right to exploit the applicable Rights until the misuse or security breach is remedied.
2. DIGITAL RIGHTS MANAGEMENT
2.1. In exploitation of the Digital Rights via the Licensee Service, the Licensee shall at its own cost implement the DRM Technology with respect to the applicable Rights and Authorised Transmission Means and any
other technological protection measures to ensure that the Programme is used within the scope of the Rights granted to the Licensee and to End Users.
2.2. The Licensee shall ensure that the measures adopted under paragraph 2.1 of this Schedule 2 in conjunction with the exploitation of the Programme as allowed by this Agreement are sufficient to ensure that End Users of the Programme are not able to copy, transfer, communicate the Programme to the public, or in any way exploit the Programme other than as allowed by this Agreement.
2.3. The Licensee shall ensure that End Users do not remove, bypass, circumvent, neutralise or modify any of the DRM Technology and technological protection measures used for the delivery of the Programme to End Users.
2.4. Aardman shall have the right at any time to review the effectiveness and viability of the DRM Technology and technological protection measures used by the Licensee for the Programme.
3. USE BY END USERS
3.1. The Licensee shall require that all End Users, prior to enabling them to receive the Programme via an Authorised Transmission Means from the Licensee Service with respect to the Rights agree to terms and conditions of use in relation to End Users accessing the Programme that:
3.1.1. require them to reside in the Territory;
3.1.2. require them to comply with all applicable laws in accessing the Programme;
3.1.3. state that the Programme being supplied is only for the End User’s personal use;
3.1.4. prohibit reproduction or distribution of the Programme that violates applicable law; and
3.1.5. contain a reservation for Aardman of all IPR and other rights in the Programme,
(collectively the Terms of Use). The Licensee’s Terms of Use, and any other material changes to them from time to time, must be approved by Aardman in advance and before the Programme is made available to End Users subject to their terms.