Stručný výpis zo zmluvy Broadcast Agreement – FIBA
ZM2014507
Stručný výpis zo zmluvy Broadcast Agreement – FIBA
Zmluvný partner: | FEDERATION INTERNATIONALE DE BASKETBAL 5, Route Suisse, 1295 Mies Switzerland |
Poskytnuté práva: | Exkluzívne bez možnosti poskytovať sublicencie |
Územie: | Slovensko |
Jazyk: | slovenčina |
Povolené médiá: | Televízia, internet, IPTV a mobilné vysielanie |
Povolené vysielanie na vyžiadanie: | Rovnaké ako povolené médiá |
Povolené sociálne médiá: | Každý účet na sociálnych médiách, ktorý (i) plne vlastní a prevádzkuje nadobúdateľ práv a (ii) ktorý dodrží podmienku poskytovať práva iba na území a bude oslovovať iba divákov na povolenom území |
Poplatok za licenciu: | 15 000,-€ uhradiť po podpise zmluvy |
Povolené zápasy: | ME v basketbale žien - všetky zápasy národného tímu naživo - jeden semifinálový zápas naživo - Finále naživo - |
IDEC: | 617-2310-0837-0000 |
Výpis: Xxxxxx Xxxxxxxxxxx 7.6.2017
B R O A D C A S T A G R E E M E N T
THIS AGREEMENT is made the ............................ day of 2017,
between FEDERATION INTERNATIONALE DE BASKETBALL
5, Route Suisse,
1295 Mies Switzerland
(hereinafter “FIBA”)
of the one part
and RADIO AND TELEVISION SLOVAKIA
Xxxxxxx xxxxxx, 000 00 Xxxxxxxxxx Xxxxxxxx
(hereinafter the “LICENSEE”)
of the other part
WHEREAS:
A FIBA is the world international governing body of the sport of basketball and has the right to sanction and to stage or have staged basketball events including the COMPETITIONS (as defined below) and to license all broadcasting rights to such events.
B The LICENSEE wishes to acquire broadcasting rights relating to the COMPETITIONS and FIBA is willing to grant such rights on the terms hereinafter appearing.
NOW IT IS HEREBY AGREED as follows:
GRANT OF RIGHTS
1 Subject to Clause 2 below and in consideration of and conditional upon payment of all amounts set out in Appendix 3 by the LICENSEE and performance of each of its other obligations hereunder, FIBA hereby grants the LICENSEE a licence to exercise the following rights throughout the TERM strictly subject to the terms and conditions of this Agreement. As set out in Clause 3 of the GRANT OF RIGHTS, all other rights not specifically granted to the LICENSEE are expressly excluded and reserved to FIBA.
Live Rights
1.1 The exclusive, non-sublicensable, non-transferrable right to distribute the BASIC FEED on a LIVE basis in the LOCAL LANGUAGE by the PERMITTED MEANS on the PERMITTED SERVICES throughout the TERRITORY (LIVE RIGHTS).
Replay Rights
1.2 The exclusive, non-sublicensable, non-transferrable right to distribute audio-visual footage of the GAMES contained in the BASIC FEED in the LOCAL LANGUAGE by the PERMITTED MEANS on the PERMITTED SERVICES throughout the TERRITORY:
1.2.1 for an unlimited number of times provided that such replays shall not be transmitted during any time period in which that GAME is being aired LIVE or the first transmission of the GAME is being aired in the same broadcast market; and
1.2.2 on a VIDEO ON DEMAND basis on the PERMITTED VOD SERVICES during the period of thirty (30) days from the end of the relevant GAME,
provided that all transmissions of replays of a GAME (other than GAME CLIPS) shall be a full GAME or portions of a GAME that are condensed solely to have a duration of 20 minutes or greater in length (or the full length of the relevant GAME, if shorter) (REPLAY RIGHTS).
Clip Rights
1.3 The non-exclusive, non-sublicensable, non-transferrable right to produce and distribute a clips package of each GAME contained in the BASIC FEED in the LOCAL LANGUAGE by the PERMITTED MEANS throughout the TERRITORY:
1.3.1 for an unlimited number of times on the PERMITTED SERVICES and the PERMITTED SOCIAL MEDIA SERVICES; and
1.3.2 on a VIDEO ON DEMAND basis on the PERMITTED VOD SERVICES and the PERMITTED SOCIAL MEDIA SERVICES during the period of thirty (30) days from the end of the relevant GAME,
provided that in each case, each clips package of a GAME is no longer than ninety (90) seconds in length.
(CLIP RIGHTS).
Highlights Package Rights
1.4 The non-exclusive, non-sublicensable, non-transferable right to distribute the HIGHLIGHTS PACKAGE in the LOCAL LANGUAGE, by the PERMITTED MEANS throughout the Territory:
1.4.1 for an unlimited number of times on the PERMITTED SERVICES; and
1.4.2 on a VIDEO ON DEMAND basis during the period of thirty (30) days from the end of the relevant GAME,
(HIGHLIGHTS PACKAGE RIGHTS)
Unilateral Feed Production
1.5 The non-exclusive right, subject to FIBA's prior written approval not to be unreasonably withheld, in compliance with FIBA's directions and subject to logistical feasibility taking into account available space at the venues (without limitation, so as not to interfere with FIBA's (or its designee's) production of the FIBA GAMES and the HB GAMES (as applicable), to supplement its transmissions of the BASIC FEED of each COMPETITION pursuant to its exercise of the LIVE RIGHTS, REPLAY RIGHTS and VOD RIGHTS with further audio-visual coverage via the production of a UNILATERAL FEED of that COMPETITION through additional camera positions. All costs and charges of accreditation, space, power, lighting and equipment provided to the LICENSEE in relation to the UNILATERAL FEED shall be the LICENSEE’s sole responsibility and at the LICENSEE'S sole risk.
Ancillary Rights
1.6 The: (a) non-exclusive right to use the MARKS; and (b) the exclusive right to use the DESIGNATION, in each case, in the TERRITORY and in strict accordance with Clause 8 of the STANDARD TERMS AND CONDITIONS (ANCILLARY RIGHTS).
Promotional Rights
1.7 Subject always to the prior written approval of FIBA, the LICENSEE shall be permitted to use certain clips of audio-visual footage from the BASIC FEED of players and still images containing players (PROMOTIONAL MATERIALS) on a non-exclusive basis for the sole purpose of promoting the COMPETITIONS and the transmission of the BASIC FEED in accordance with this Agreement. Any and all use of such PROMOTIONAL MATERIALS by the LICENSEE shall be pre-approved by FIBA PROMOTIONAL MATERIALS shall only be used to promote the transmission of the BASIC FEED in accordance with this Agreement and the LICENSEE agrees that:
(a) the provision of such content shall be subject to such further guidelines (if any) notified to the LICENSEE by FIBA;
(b) FIBA may charge additional technical delivery fees for the delivery of such content;
(c) any other use of PROMOTIONAL MATERIALS will constitute a material breach of this Agreement;
(d) the use of PROMOTIONAL MATERIALS to promote the transmission of a specific COMPETITION shall: (i) only feature players who are reasonably expected to participate in such COMPETITION; and (ii) feature at least five (5) players that do not represent the same team ;
(e) such PROMOTIONAL MATERIALS shall not constitute an implied or direct endorsement of any product or service of the LICENSEE or any other third party; and
(f) it will not use the name, likeness or persona of any COMPETITION participant or other person attending any COMPETITION in the manner of an endorsement of any product or service.
1.8 LICENSEE and FIBA shall further work together to review and develop promotional campaigns to be used to promote the COMPETITIONS to
LICENSEE’s viewers. Such promotional campaigns should involve the development of promotional advertising spots and use of photographs from previous FIBA COMPETITIONS.
2 The grant of the RIGHTS is strictly subject to:
2.1 the right of any organisation to broadcast news access and take advantage of any other "fair dealing" principles in the TERRITORY on any platform (TELEVISION, INTERNET, IPTV or MOBILE TRANSMISSION) to the extent permitted under relevant national regulations;
2.2 the right of FIBA to use and license in the TERRITORY on any platform (including TELEVISION, INTERNET, IPTV or MOBILE TRANSMISSION), in its sole discretion excerpts, clips and highlights from each COMPETITION, whether coupled with other audio visual material or otherwise for promotional and advertising purposes only;
2.3 the right of FIBA to include excerpts of each day of each COMPETITION:
(a) on FIBA WORLD BASKETBALL and FIBA WEBSITES; and
(b) in weekly, monthly or regular sport compilation programmes that may be produced and/or exploited by or on behalf of FIBA, in its sole discretion, following no earlier than a seventy-two
(72) hour period after the final buzzer of the last GAME of such day of COMPETITION;
2.4 the right of FIBA to transmit all GAMES on a LIVE basis and/or delayed basis in whole or in part on the FIBA WEBSITES by way of INTERNET, IPTV or MOBILE TRANSMISSION in the TERRITORY in the English language on a pay subscription basis; and
2.5 with respect to any semi-final and/or final GAMES which include the national team of a country within the TERRITORY, where required pursuant to applicable law, FIBA (acting reasonably) granting the exclusive FREE TELEVISION RIGHTS to any third party for exercise in the TERRITORY. These rights may include clips rights of the relevant COMPETITION for use in the respective semi-final and final GAME programmes, trailers for such programmes and promotional activity (for example, promotional spots, teasers) of the appointed third party.
3 In addition, all rights not expressly granted to the LICENSEE hereunder are reserved for FIBA’s use and deposition without any limitations whatsoever, particularly, but without limitation:
3.1 the ARCHIVE RIGHTS;
3.2 the BETTING SERVICE RIGHTS
3.3 RADIO RIGHTS;
3.4 video and DVD,
3.5 the right to distribute via CLOSED CIRCUIT TELEVISION and the right to distribute to commercial premises;
3.6 PAY-PER-VIEW rights (provided that FIBA shall not offer the right to distribute the BASIC FEED in the TERRITORY on a PAY-PER-VIEW basis to any third party during the Term);
3.7 any and all MERCHANDISING RIGHTS; and
3.8 the right to collect (via any means) or distribute any data relating to any of the GAMES (for the avoidance of doubt, data contained within the BASIC FEED may be distributed as part of the LICENSEE's distribution of the BASIC FEED).
4 The LICENSEE shall have the opportunity to acquire, subject to availability, an agreed limited number of tickets for the GAMES of the COMPETITIONS.
5 The LICENSEE hereby agrees that it will, at the request and expense of FIBA and within the TERRITORY take all such actions, proceedings or steps as may be necessary in its name or such name as FIBA shall require to protect the copyright in the BASIC FEED of any COMPETITION or any material incorporated in any tapes supplied hereunder or any other interests or rights of FIBA. Further, the LICENSEE agrees forthwith to notify FIBA of any infringement or breach of the copyright or other rights in the BASIC FEED of any COMPETITION or any material incorporated in tapes provided to the LICENSEE hereunder that shall come to the attention of the LICENSEE and to take all such actions proceedings or steps, at FIBA’s expense, as FIBA shall require in respect of any such infringement or breach.
6 The LICENSEE acknowledges and agrees that the use or exercise of the RIGHTS granted hereunder is subject to all applicable laws and regulations in the TERRITORY.
This Agreement, together with the STANDARD TERMS AND CONDITIONS and each of the other Appendices (which form an integral part of this Agreement), constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all previous understandings, negotiations and proposals as to such subject matter.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in two (2) initialled originals by their duly authorised representatives on the day and year first above written.
FEDERATION INTERNATIONALE RADIO AND TELEVISION SLOVAKIA DE BASKETBALL
By: By:
Title: Title:
APPENDIX 1
COMPETITIONS
EVENT | DATE | LOCATION |
2017 Women: FIBA EuroBasket Women Championship | June 2017 | Czech Republic |
APPENDIX 2
KEY COMMERCIAL TERMS
TERRITORY | Slovakia (subject to Clause 2.5 of the GRANT OF RIGHTS) |
LOCAL LANGUAGE | Slovak |
PERMITTED MEANS | Distribution via TELEVISION, the INTERNET, IPTV and MOBILE TRANSMISSION) |
PERMITTED SERVICES | Any service which is: wholly owned, controlled and operated by or on behalf of the LICENSEE; (ii) without derogating from the requirements to only exercise the RIGHTS within the TERRITORY) targeted at viewers within the TERRITORY only; and (iii) branded as Radio and Television Slovakia (RTS) |
PERMITTED VOD SERVICES | Same as PERMITTED SERVCIES above |
PERMITTED SOCIAL MEDIA SERVICES | Any social media account which is: (i) wholly owned, controlled and operated by the LICENSEE; and (ii) (without derogating from the requirements to only exercise the RIGHTS within the TERRITORY) targeted at viewers within the TERRITORY only. |
A P P E N D I X 3
CONSIDERATION
The LICENSEE shall pay FIBA the monetary amount of Fifteen thousand Euros (15,000 EUR) to be due and payable in accordance with Clause 7 of the STANDARD TERMS AND CONDITIONS as follows:
Due Date Amount (EUR)
30 days after receiving of the Invoice 15,000
A P P E N D I X 4
DISTRIBUTION OBLIGATIONS
The guaranteed minimum number of live broadcasts of each COMPETITION and/or GAME on TELEVISION by the LICENSEE shall be as follows:
2017 FIBA EuroBasket Women’s Championships
• All GAMES of the National Team LIVE;
• One (1) Semi-Final GAME LIVE; and
• the Final GAME LIVE
A P P E N D I X 5
STANDARD TERMS AND CONDITIONS
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following expressions shall, unless the context otherwise requires, have the following meanings:
"ANCILLARY RIGHTS" shall have the meaning given to it in Clause 1.7 of the GRANT OF RIGHTS;
"ARCHIVE RIGHTS" means the right to exploit footage from GAMES of the COMPETITIONS in respect of the period starting from the later of: (i) seven (7) days after the final buzzer of the last GAME of such day of COMPETITION; and (ii) the final buzzer of the final GAME of such COMPETITION;
"BASIC FEED" means the basic international audio and colour video signal(s) incorporating a live television picture, the necessary related background sound and effects, slow motion, replays and international graphics, which is totally devoid of any added commercial material except for basketball promotional spots and the graphics of the COMMERCIAL PARTNERS as specified by FIBA, and all recordings of such signals;
“BEST INDUSTRY PRACTICE” means the exercise of the highest level of skill, care, prudence, efficiency, foresight and timeliness in the industry;
"BETTING SERVICE RIGHTS" means the right throughout the world during the TERM to broadcast, transmit, distribute, make available and otherwise exploit complete and uninterrupted audio-visual coverage of each of the COMPETITIONS in any form via any betting services;
"CLIP RIGHTS" shall have the meaning given to it in Clause 1.3 of the GRANT OF RIGHTS;
"CLOSED CIRCUIT TELEVISION" means the exhibition or transmission of analogue or digital signals, with or without charge to the viewer over individually wired systems to an audience confined to a limited area including hotels, bars, restaurants, construction sites, oil rigs, ships, aircraft, buses, trains, armed services establishments, educational establishments, religious establishments, hospitals, hospices, homes for the elderly, prisons, remand homes and premises for social and cultural activities;
“COMMERCIAL PARTNERS” means any entity to which any sponsorship or other commercial rights have been, or may be, assigned, licensed, sub-licensed or sub- contracted by, or on behalf of, FIBA in relation to any of the COMPETITIONS including any “Global Partner”, “Title or Presenting Sponsor”, “Official Sponsor”, “Official Supplier”, etc.;
"COMMERCIAL PREMISES RIGHTS" shall have the meaning given to it in Clause 1.5 of the GRANT OF RIGHTS;
"COMPETITIONS" means, collectively or individually as the context may require, the basketball events listed in Appendix 1, including the opening and closing ceremonies thereof (if any);
“COMPOSITE LOGO” means a mark combining the logo or name of the LICENSEE with a COMPETITION XXXX;
"DESIGNATION" means the official designation “Official Broadcaster of the COMPETITION” and any literal translation thereof that shall be agreed between the LICENSEE and FIBA;
"DISTRIBUTION OBLIGATIONS" shall mean the obligations of the LICENSEE set out in Appendix 4 of this Agreement;
“FIBA EMBLEM” means the official graphical logo denoting FIBA itself, whether with or without the word FIBA;
“FIBA GAMES” means a GAME from the COMPETITIONS in Appendix 1 which are not marked with an asterix, the BASIC FEED and RADIO SIGNAL in respect of which is produced by or on behalf of FIBA;
“FIBA TV MANUAL” means the document produced by FIBA detailing all of the television production and logistical aspects related to the COMPETITIONS and available for download on the XX.XXXX.xxx website as amended time to time;
“FIBA WEBSITES” means any official internet websites or other digital property owned and/or controlled by FIBA from time to time including but not limited to xxx.xxxx.xxx, xxx.xxxxxx.xxx, xxx.xxxxxxxxxxxxxx.xx, xxx.xxxx.xxx.xx (the Chinese language version) or any other language version and the
xxx.xxxxxxxxxxxx.xxx as well as the FIBA Zone/the FIBA Regional Event and xxxxxxxxxxxx.xxx websites;
“FIBA WORLD BASKETBALL” means the global weekly magazine programme of approximately twenty-six (26) minutes (net of advertising breaks) in duration produced by, or on behalf of, FIBA featuring a review of FIBA activities and basketball in general and which is at this moment in time entitled “FIBA World Basketball”;
"FREE" means an audio-visual programme (or the programming services or channels on which the applicable audio-visual programme is made available to the viewer), for which viewers do not pay a charge other than: (i) any tax, levy or other fee imposed by any governmental, administrative or other public authority in the Territory (including any reception fees for a public service free-to-air television broadcaster or any licence fee for accessing audio-visual services) and/or (ii) any minimal platform fee for general reception of, or access to, an audio-visual service or channel (or package of services or channels);
"FREE TELEVISION RIGHTS" means the right to distribute LIVE and/or delayed coverage (in whole or in part) via TELEVISION on a FREE basis (together with the right to simulcast such coverage via the INTERNET, IPTV and MOBILE TRANSMISSION);
"GAME" means a basketball game of a COMPETITION in its entirety including pre- game ceremony or any extra time period(s);
"GRANT OF RIGHTS" means the terms (including the grant of RIGHTS) which are set out in the first part of this Agreement entitled GRANT OF RIGHTS;
"HB GAMES" means a GAME from the COMPETITIONS in Appendix 1 which are marked with an asterix, the BASIC FEED and RADIO SIGNAL in respect of which is produced by or on behalf of a HOST BROADCASTER;
"HIGH DEFINITION" means the transmission, exhibition and distribution of television signals in a format with a resolution of 1080i (1920 x 1080 interlace with a 16 x 9 aspect ratio) or higher;
"HIGHLIGHTS PACKAGE" means, in respect of a GAME, any edited and recorded still or moving image segment(s) or extract(s) of the relevant BASIC FEED and/or UNILATERAL COVERAGE of up to five (5) minutes of each day of each COMPETITION with a maximum of sixty (60) seconds per GAME that may be produced by or on behalf of the HOST BROADCASTER as instructed by FIBA;
“HIGHLIGHTS PACKAGE RIGHTS” shall have the meaning given to it in Clause 1.4 of the GRANT OF RIGHTS;
"HOST BROADCASTER" means the organisation responsible for creating, producing and supplying the BASIC FEED of HB GAMES and for providing broadcast facilities to INTERNATIONAL BROADCASTERS as per the FIBA TV MANUAL;
“HOST BROADCASTER GUIDELINES” means those programming and production standards set out in APPENDIX 5 or in any separate production standards manual, whether included in the applicable FIBA TV MANUAL or otherwise, produced by or on behalf of FIBA;
"INTERNATIONAL BROADCASTER" means any party that has entered or will enter into an agreement with FIBA for the transmission of coverage of any one or more of the COMPETITIONS (of part thereof) either: (i) outside the TERRITORY; or (ii) in respect of media rights not granted hereunder (or which are granted hereunder but on a non- exclusive basis only), within the TERRITORY;
"INTERNATIONAL GATEWAY" means the location, specified in each case, by FIBA at which FIBA or its designee (in respect of FIBA GAMES) or the HOST BROADCASTER (in respect of HB GAMES) delivers the BASIC FEED and RADIO SIGNAL to, which may be a “Master Control Room”, an uplink truck, an “International Broadcasting Centre”, an outside broadcast van or a pan-Continental satellite where the BASIC FEED and RADIO SIGNAL of that COMPETITION will be made available to INTERNATIONAL BROADCASTERS of that COMPETITION;
"INTERNET" means the on-line global communications matrix which interconnects, either directly or indirectly, individual computers (whether integrated with other technology or otherwise) and/or computer networks and any on-line telecommunications system or digital based service, or any present or future systems performing a similar function;
“IPTV” means television exhibition delivered over a point to point (i.e. from the head- end to the set-top box) television network system (whether comprised of fiber optic telephone lines, twisted copper wire and/or coaxial cable lines or any other delivery network), whereby television content is delivered by Internet Protocol (“IP”) or any successor protocol via an encrypted digital video broadcasting signal sent across a closed transmission path (i.e. not an open network such as the INTERNET nor directly accessible by the INTERNET) to be received by set-top boxes or other devices, including “smart televisions”, that are programmed with conditional access technologies to restrict access only to viewers authorised to receive such television content through television receivers or other display devices connected to such set- top boxes or other devices;
"LICENSEE GAMES" means those HB GAMES which take place in the TERRITORY, the BASIC FEED and RADIO SIGNAL in respect of which is produced by or on behalf of the LICENSEE in accordance with this Agreement;
"LIVE" means “live” or in “real time” with the depicted GAME (subject to any inevitable technical delay in production and/or distribution);
"LIVE RIGHTS" shall have the meaning given to it in Clause 1.1 of the GRANT OF RIGHTS;
"LOCAL LANGUAGE" means those specified in Appendix2 of this Agreement;
“MARKS” means the official names of the COMPETITIONS and as such the COMPETITION MARKS, the FIBA EMBLEM and the COMPOSITE LOGO as the LICENSEE
is granted the right to use pursuant to the ANCILLARY RIGHTS in accordance with Clause 8 of the STANDARD TERMS AND CONDITIONS;
"MERCHANDISING RIGHTS" means the right to use materials during the TERM for the purpose of designing, manufacturing, advertising, promoting, marketing and/or selling FIBA, COMPETITION, team, basketball, OC, OM products to third parties (on a wholesale and/or retail basis) throughout the TERRITORY;
“MOBILE DEVICE” means any wireless device which is designed or adapted to be capable of being operated whilst the user is in motion; and capable of intelligibly receiving audio material and/or still; or moving visual and/or audio-visual material; and either handheld or installed in a vehicle, but expressly excluding any television receiver, whether handheld or installed in a vehicle, which does not have any telephony or other built-in two-way communications capability;
“MOBILE TRANSMISSION” means: (a) any of the following wireless communications technologies: General Package Radio Services (GPRS), Global System for Mobile Communications (GSM), Enhanced Data GSM Environment (EDGE), Code Division Multiple Access (CDMA), High Speed Circuit Switched Data (HSCSD), Personal Communications Networks (PCN), Wireless Application Protocol (WAP), Universal Mobile Telecommunications Systems (UMTS), Bluetooth, Wi-Fi, and any similar, related or derivative technology now known or devised or invented in the future and any other wireless technology whether now known or hereinafter devised or invented; and (b) each wireless standard or technology which is used for the point to multi-point broadcast of audio-visual content such as Digital Video Broadcasting – Handheld (DVB-H) and IP Datacast over DVB-H (commonly known as IP Datacast), in each case, which enable or facilitate the transmission to, and/or intelligible reception by, MOBILE DEVICES of audio-visual content, still or moving visual and audio-visual material, and data and/or textual material;
"OC" (Organising Committee) means, in respect of a COMPETITION, the organising committee appointed by an OM to undertake the practical organisation of that COMPETITION;
"OM" (Organising Member) means, in respect of a COMPETITION, the National Member Federation responsible to FIBA for the organisation of that COMPETITION;
"PAY" means an audio-visual programme (or the programming services or channels on which the applicable audio-visual programme is made available to the viewer), for which viewers pay a charge over and above: (i) any tax, levy or other fee imposed by any governmental, administrative or other public authority in the TERRITORY (including any reception fees for a public service free-to-air television broadcaster or any licence fee for accessing audio-visual services) and/or (ii) any minimal platform fee for general reception of, or access to, an audio-visual service or channel (or package of services or channels);
“PAY-PER-VIEW” means transmissions in respect of which: (i) a charge or charges are levied on a per programme, per occasion, per day (or other period) or per package of programmes basis (which charge(s) shall be in addition to those payable with respect to FREE services or PAY services as described herein in the definitions of such services); and (ii) the time for each such transmission is designated by the provider of that transmission (and not by the viewer) excluding VIDEO ON DEMAND;
"PERMITTED MEANS" has the meaning given to it in Appendix 2; "PERMITTED SERVICES" has the meaning given to it in Appendix 2;
“PERMITTED SOCIAL MEDIA SERVICES” has the meaning given to it in Appendix 2; "PERMITTED VOD SERVICES" has the meaning given to it in Appendix 2;
"PROMOTIONAL MATERIALS" shall have the meaning given to it in Clause 1.8 of the GRANT OF RIGHTS;
"RADIO RIGHTS” means the right to transmit and deliver by means of radio delivery the audio feed of the GAMES, as part of, and for inclusion in, any audio-only services or programmes;
"RADIO SIGNAL" means an audio signal of a GAME consisting of international sound conforming to the highest professional standards, totally devoid of any commercial material;
"REPLAY RIGHTS" shall have the meaning given to it in Clause 1.2 of the GRANT OF RIGHTS;
"RIGHTS" means, together, the LIVE RIGHTS, REPLAY RIGHTS, HIGHLIGHTS PACKAGE RIGHTS, CLIP RIGHTS, and the ANCILLARY RIGHTS;
"SITE(S)" means the location(s) where a COMPETITION is held and includes the arenas, the training areas, press centres, broadcast centres, parking areas, hospitality tents and suites, franchise and display areas, contiguous areas and all and any other areas used in connection with the COMPETITION which are under the authority and control
of FIBA, the HOST BROADCASTER and/or the OM or the OC. SITE shall also include the airspace above all areas detailed in this definition;
“STANDARD TERMS AND CONDITIONS” means those standard terms set out in Appendix 6 of this Agreement;
"TELEVISION" means any form of television broadcast via satellite, cable or terrestrial means, irrespective of whether analogue or digital, on a FREE or PAY basis and including the following techniques and standards: ATT, DTH, CATV, SMATV or DTT and their derivative systems and services or any combination of them (but excluding any distribution via the INTERNET, IPTV or MOBILE TRANSMISSION).
"TERM" means the period commencing on the date stated at the head of this Agreement and continuing , unless terminated earlier in accordance with the terms of this Agreement, until 31st December 2017;
"TERRITORY" has the meaning specified in Appendix 2 of this Agreement;
"UNILATERAL FEED" means the unilateral audio and/or video feed of the COMPETITIONS which the LICENSEE is entitled to produce and distribute in accordance with Clause 1.6 of the GRANT OF RIGHTS;
"VIDEO ON DEMAND" means any transmission of an audio-visual programme or package of audio-visual programmes in respect of which the time for each such transmission is designated by the viewer and not from a selection of viewing times scheduled by the provider of that transmission (whether or not a charge or charges are levied in respect of such transmission).
1.2 References to Clauses, Sub-clauses and Appendices are, unless otherwise stated, references to clauses and sub-clauses of, and appendices to, this Agreement.
1.3 References to "include" and "including" are to be construed without limitation.
1.4 Words importing the singular include the plural and vice versa. Words importing the masculine gender include the feminine and neuter and vice versa. References to persons include incorporated and unincorporated bodies or partnerships and also include reference to that person's legal representatives, successors and permitted assigns.
1.5 Headings are for convenience only and shall not affect the interpretation of this Agreement.
2 OBLIGATIONS OF LICENSEE
The LICENSEE hereby undertakes:
2.1 to appoint or act as, at its own cost, the HOST BROADCASTER for any LICENSEE GAMES in accordance with the provisions of Appendix 5 and Clause 6 of these STANDARD TERMS AND CONDITIONS;
2.2 to make available the BASIC FEED of each of the COMPETITIONS via TELEVISION on a LIVE basis throughout the Territory, as expressly permitted under this Agreement so as to achieve maximum exposure to the largest possible audience and in any event to broadcast audio-visual coverage of each COMPETITION in accordance with the DISTRIBUTION OBLIGATIONS;
2.3 subject to the provisions of Clause 4, to employ geo-blocking and digital rights management measures in accordance with BEST INDUSTRY PRACTICE to ensure that any transmissions via the INTERNET, IPTV and/or MOBILE TRANSMISSION are not accessed in any form outside of the TERRITORY;
2.4 that it (or any platform distributor) shall not actively market the availability of any audio-visual coverage of the COMPETITIONS outside of the TERRITORY, target individuals who have an address outside of the Territory and/or promote the availability of such broadcast outside the TERRITORY;
2.5 subject to the provisions of Clause 8 of these STANDARD TERMS AND CONDITIONS, to use the appropriate MARKS in the distribution of coverage of each COMPETITION and in television guides and programmes as permissible and appropriate, it being understood that the LICENSEE shall use its reasonable endeavours to promote the MARKS;
2.6 to use the full official title of a COMPETITION which may include a title or presenting sponsor name in each broadcast whether in full or part of the COMPETITION in accordance with the GRANT OF RIGHTS;
2.7 to use its reasonable endeavours to promote each of the COMPETITIONS, in close co-operation with FIBA and as per other premier international sports events, in particular by broadcasting advertisements and trailers for each of the COMPETITIONS;
2.8 not to exploit nor permit the exploitation of any of the LICENSEE's broadcasts of any of the COMPETITIONS by way of “crawler” messages, on-screen identification or any other means whatsoever so as to constitute an express, implied, direct or indirect endorsement of any product, service or sponsor other than as expressly sanctioned in writing by FIBA. Only the identifications of the COMMERCIAL PARTNERS, approved by FIBA may be superimposed on the visual images of any of the COMPETITIONS or the SITES provided that LICENSEE shall be authorised to superimpose its own logo;
2.9 not to substitute, insert, delete or change any advertising or message at the SITES by any electronic or other means during or for any live or delayed broadcast of the COMPETITIONS or otherwise manipulate the images of any part of the COMPETITIONS including by way of virtual facsimile alteration or representation or any part of the COMPETITIONS as appearing in the BASIC FEED;
2.10 not, without the prior written consent of FIBA, to make any interactive transmissions or interruptions to the BASIC FEED by way of overlays, shrink- screens, squeeze-backs or otherwise immediately before, during or immediately after any broadcast of the COMPETITIONS licensed hereunder, whether such transmissions are by way of present or future technology, connected with such broadcast or otherwise;
2.11 to permit FIBA and/or its authorised designees in their absolute discretion to substitute, insert or delete by electronic means any advertising appearing (in whole or in part) in the BASIC FEED of any of the COMPETITIONS and to include such advertising within its exhibition of the audio-visual footage which comprises the BASIC FEED, subject to compliance with laws applicable in the TERRITORY;
2.12 to inform FIBA upon FIBA’s request at least fifteen (15) days before each broadcast of a COMPETITION of the date, time and length of such broadcast and whether it will be LIVE or delayed;
2.13 to inform FIBA upon FIBA’s request within one (1) month after each COMPETITION of the date, time and length of each transmission, if such data is available, whether such transmission was LIVE and/or delayed, of actual or estimated audience figures, other research data relating to that COMPETITION, comparisons with other sports in the same week or period, ratings (if available), additional coverage in other programmes, news, repeats and the like, in order that FIBA may monitor the sport's impact and popularity;
2.14 to provide free of charge to FIBA, upon request, with a digitally delivered copy of the UNILATERAL FEED of each applicable GAME of a COMPETITION and of all material broadcast by the LICENSEE including commentary and commercial breaks and advertising shown immediately before, during and after its broadcasts together, for FIBA internal use only;
2.15 to bear all costs and expenses relating to the exercise of the RIGHTS and the performance of its obligations hereunder;
2.16 if on SITE, to assist and provide reasonable cooperation to FIBA (or its designee(s)) with the production of the FIBA GAMES;
2.17 to promote FIBA, the COMPETITIONS and other FIBA events in accordance with the instructions of FIBA by broadcasting “promos” for the COMPETITIONS and an introductory television sequence of between fifteen (15) and thirty (30) seconds duration, immediately before and after the broadcast of each GAME of the COMPETITION, which sequence shall be produced by FIBA and may include reference to a title or presenting sponsor of the COMPETITION, subject to compliance with the applicable laws in the TERRITORY; and
2.18 to promote its broadcast of the COMPETITIONS and include PROMOTIONAL MATERIALS, at no cost to FIBA, in its various subscriber or programme print magazines (if such publications are produced). Such promotions shall include a minimum of one full colour page promotion for the forthcoming broadcasts of the COMPETITIONS to be placed in the relevant magazines in the month/weeks of the broadcast of the COMPETITIONS.
3 DELIVERY
3.1 The LICENSEE shall contact FIBA (in respect of FIBA GAMES) or the relevant HOST BROADCASTER (in respect of HB GAMES) to agree on terms for its access to the BASIC FEED of a COMPETITION from the INTERNATIONAL GATEWAY(S) for that COMPETITION (or such other interface point agreed between the LICENSEE and FIBA/the relevant HOST BROADCASTER). The LICENSEE shall bear all costs, charges, duties, levies and taxes relating to any technical services to be rendered by FIBA and/or the relevant HOST BROADCASTER to the LICENSEE under this Agreement, the rates to be in compliance with FIBA's (in respect of FIBA GAMES) and/or the HOST BROADCASTER’s (in respect of HB GAMES) standard rate card approved by FIBA and submitted to the LICENSEE, where possible, at least three (3) months prior to the start of the COMPETITION in question.
3.2 The LICENSEE shall broadcast all elements making up the BASIC FEED of each COMPETITION and agrees not to edit, alter or supplement the content of the BASIC FEED and/or the HIGHLIGHTS PACKAGES of any of the COMPETITIONS in any way whatsoever save that the LICENSEE shall be entitled:
(a) to make any amendments necessary to comply with applicable law;
(b) to edit the BASIC FEED and UNILATERAL FEED of each COMPETITION strictly as necessary to exercise the GRANT OF RIGHTS provided that such editing does not in any way: (i) delete, alter or interfere with the on-screen identifications and graphics of the COMMERCIAL PARTNERS (official computer partner and official timer partner) incorporated in the BASIC FEED of each COMPETITION; or (ii) affect the integrity and coverage of any of the COMPETITIONS or the participants nor remove any credits or copyright notices; and
(c) to add voice overlay in the LOCAL LANGUAGE to the BASIC FEED of each COMPETITION in TERRITORY provided that such voice overlay: (i) is included to a first class professional standard; and (ii) does not affect the integrity of the BASIC FEED.
4 OVERSPILL AND TERRITORIAL RESTRICTIONS
4.1 The LICENSEE acknowledges that transmissions of the BASIC FEED and/or UNILATERAL FEED of the COMPETITIONS (save in respect of transmissions made by means of the INTERNET and/or IPTV) originating outside the TERRITORY from FIBA’s other licensees/distributors, may be received by individuals located within the TERRITORY and agrees that such overspill shall not constitute a breach of this Agreement provided that: (i) it is incidental and unintentional; and (ii) other licensees or their distributors shall not actively market in the TERRITORY and/or promote the availability of their broadcast within the TERRITORY. In particular, the LICENSEE acknowledges further that the ability of FIBA to prevent other licensees from transmitting the BASIC FEED and/or UNILATERAL FEED of the COMPETITIONS via satellite into the TERRITORY may be limited due to the inherent capability of satellites to beam down signals which are not confined to territorial boundaries and agrees that any such transmission shall also not constitute a breach of this Agreement.
4.2 FIBA acknowledges that transmissions of the BASIC FEED and/or UNILATERAL FEED of COMPETITIONS (save for transmissions made by means of the INTERNET and/or IPTV) originating inside the TERRITORY from the LICENSEE may be received outside the TERRITORY and that such overspill shall not constitute a breach of this Agreement provided that: (i) it is incidental and unintentional; and (ii) LICENSEE shall not actively market outside the TERRITORY and/or promote the availability of their broadcast outside the TERRITORY. In particular, FIBA acknowledges further that the ability of LICENSEE from preventing platform operators transmitting the BASIC FEED and/or UNILATERAL FEED of the COMPETITIONS via satellite into the TERRITORY may be limited due to the inherent capability of satellites to beam down signals which are not confined to territorial boundaries and agrees that any such transmission shall also not constitute a breach of this Agreement.
4.3 Without prejudice to the scope of the grant of RIGHTS, nothing in this Agreement shall prohibit or restrict the LICENSEE from:
(a) making available any footage via DTH satellite to an individual with an address outside of the TERRITORY but within the EEA where such individual makes an unsolicited approach to the LICENSEE in respect of that footage; and
(b) promoting, advertising and/or marketing any footage via any website or other media which may be viewable by individuals who have an
address outside of the TERRITORY, provided the relevant promotion, advertisement or marketing material is not specifically targeted at such individuals (for example, by including a special offer for individuals who have an address outside of the TERRITORY);
4.4 The LICENSEE acknowledges and accepts that, in respect of transmission of the footage of the COMPETITIONS within the EEA, FIBA:
(a) may distribute and/or make available the footage outside of the TERRITORY during the TERM and/or enter into an agreement with one or more third parties to do the same; and
(b) is not entitled (pursuant to applicable laws) to restrict any such third party from selling and/or making available the footage to consumers with an address in any EEA country who makes an unsolicited approach to that third party in respect of the footage, provided that FIBA shall not (and shall seek to procure that any such third party shall not) actively promote and/or market the footage in the TERRITORY and/or specifically target any individuals who have an address inside of the TERRITORY in the promotion and/or marketing of the footage.
4.5 Nothing in this Agreement shall prohibit or restrict FIBA (or any third party which it authorises to distribute and/or make available the footage of the COMPETITIONS) from promoting, advertising and/or marketing its distribution of the footage of the COMPETITIONS via any website or other media which may be viewable by individuals who have an address within the TERRITORY, provided that the relevant promotion, advertisement or marketing material is not specifically targeted at any such individuals (for example, by including a special offer for individuals with an address in a part of the TERRITORY).
4.6 The parties each acknowledge and agree that as at the date of this Agreement the law as it applies within the EEA to the distribution of audio-visual services is in a potential state of flux. In particular, the developing law in relation to the Digital Single Market Strategy and restrictions intended to prevent the cross- border supply of audio-visual services within the EEA may render unlawful (for breach of the fundamental freedoms upon which the EEA is based and/or for breach of competition law) certain obligations to take steps to prevent the cross-border supply of audio-visual services where rights, including intellectual property rights, have been granted only in respect of one or some, but not all, of the territories within the EEA. The parties each confirm that the requirements set out in this Agreement have been constructed in good faith after considering the current state of the relevant law in the EEA, and that it is not the intention of the parties to seek to agree or enforce any arrangement that is contrary to the law in the EEA or any part of the EEA. If and to the extent that any part of Clause 2.3 or any of the other restrictions or requirements in relation to the availability of audio-visual coverage of COMPETITIONS within
the EEA is in breach of, void, unlawful or unenforceable under, any applicable law (including the coming into force of the Regulation on ensuring the cross- border portability of online content services in the internal market which was proposed by the European Commission on 9/12/2015 (COM(2015) 627 final)) (relevant provision(s)), the provisions of Clause 16.7 of these STANDARD TERMS AND CONDITIONS will not apply and the parties agree that:
(a) they will not seek to enforce the relevant provision(s) (only to the extent required by applicable law) and such applicable law shall prevail; and
(b) they will each work with each other expeditiously, acting reasonably and in good faith, and taking such independent legal advice as is necessary, to make any other deletions of or amendments to the relevant provision(s) solely to ensure compliance with or the operation of applicable law.
Notwithstanding the generality of the foregoing, the parties agree that: (a) such variations shall be the only variations to this Agreement and no other terms or provisions (including those contained in Appendix 3) which are not relevant provision(s) shall be amended pursuant to this Clause 4.6; and (b) FIBA shall have no liability to the LICENSEE whatsoever (pursuant to this Agreement or otherwise) in respect of the relevant provision(s) or any variations made to this Agreement in accordance with this Clause 4.6.
5 BROADCAST SPONSORSHIP AND COMMERCIAL AIRTIME
5.1 The LICENSEE agrees to grant all COMMERCIAL PARTNERS of each of the COMPETITIONS the right of FIRST NEGOTIATION (as defined below) with respect to the purchase of any form of broadcast sponsorship and/or commercial airtime, on a product category exclusivity basis, immediately before, during and immediately after each of its broadcasts of each of the COMPETITIONS. A list of current COMMERCIAL PARTNERS and their respective exclusive product categories will be submitted to the LICENSEE by FIBA as soon as available and may be updated by FIBA no later than three (3) months before each COMPETITION.
“FIRST NEGOTIATION” as used herein shall mean that, before offering broadcast sponsorship and/or commercial airtime immediately before, during and immediately after each broadcast of the relevant COMPETITION to any potential sponsor or advertiser in any of the product categories of the COMMERCIAL PARTNERS, the LICENSEE shall:
(a) first propose to the COMMERCIAL PARTNERS of the COMPETITION in question in writing the terms and conditions thereof;
(b) negotiate exclusively with the COMMERCIAL PARTNERS in good faith for a period of fifteen (15) working days from the date of the written proposal provided that in no event shall the period of FIRST NEGOTIATION terminate later than one (1) month prior to the scheduled start date of the relevant COMPETITION; and
(c) if the COMMERCIAL PARTNERS and the LICENSEE fail to reach an agreement by the end of such period, then the LICENSEE shall be free to contact any third party with respect to any or all of such rights but not to offer such rights at better conditions than those offered to the COMMERCIAL PARTNERS.
6 APPOINTMENT OF THE HOST BROADCASTER
The LICENSEE shall at its sole cost be responsible for acting as or appointing the HOST BROADCASTER in respect of the LICENSEE GAMES as set out in Clause
2.1 of these STANDARD TERMS AND CONDITIONS and shall ensure during the TERM that it shall:
6.1 produce at no cost to FIBA and/or the INTERNATIONAL BROADCASTERS:
(a) a premier internationally accepted BASIC FEED in HIGH DEFINITION format; and
(b) a RADIO SIGNAL,
for the LICENSEE GAMES in accordance with: (i) the programming and production standards as contained in Appendix 5; (ii) the terms of this Clause 6 and the FIBA TV MANUAL; (iii) the other directions and/or approvals of FIBA; and (iv) any and all access/accreditation agreements and policies, guidelines and/or regulations of the SITES, OC or OM;
6.2 provide access to the BASIC FEED and RADIO SIGNAL of the entirety of the LICENSEE GAMES to FIBA and all INTERNATIONAL BROADCASTERS at the INTERNATIONAL GATEWAY without any limitation and free of any access fees;
6.3 establish a standard rate card specifying the prices for the technical services to be provided to INTERNATIONAL BROADCASTERS, such standard rate card to be submitted to FIBA for its prior written approval, such approval not to be unreasonably withheld or delayed, not later than four (4) months before the beginning of the COMPETITION (following such approval, the standard rate card may not be modified without FIBA’s prior written consent);
6.4 supply confirmation of the bookings made by INTERNATIONAL BROADCASTERS with the telecommunications authority in the host country where the COMPETITION is held for the domestic and international video and audio
circuits and transponders required by INTERNATIONAL BROADCASTERS and FIBA for the worldwide broadcast of the BASIC FEED (and any UNILATERAL FEEDS) and RADIO SIGNAL of the LICENSEE GAMES;
6.5 assist FIBA with the provision of a comprehensive co-ordination service, including the availability to INTERNATIONAL BROADCASTERS of space, power, lighting and equipment necessary for them to supplement the BASIC FEED of the LICENSEE GAMES with a UNILATERAL FEED and free access to the SITES to enable them to position their personnel and install their equipment. Any costs involved in this respect shall be charged by the LICENSEE to the INTERNATIONAL BROADCASTERS requesting such additional facilities according to the standard rate card prices referred to in Clause 6.3;
6.6 upon request by FIBA, to provide, free of charge, to FIBA a production suite on- site with suitably equipped editing and recording facilities and two (2) fully equipped commentary positions at each of the venues for the sole use of FIBA (such production and editing facilities shall be available at and for such time as reasonably required by FIBA);
6.7 deliver to FIBA, free of charge, immediately upon the last LICENSEE GAME of each day of the COMPETITION the HD production masters on HDcam tapes and Hard Drives of the BASIC FEED including all on-screen graphics and commentary on a separate audio channel of the LICENSEE GAMES from that day and one (1) low quality feed on a USB key with timecode and detailed logs in English. The master tapes shall be recorded onto new HD Cam stock tapes and Hard Drives supplied at the sole cost of the LICENSEE and shall be compiled from the original visual and audio sources. All masters shall conform to the highest obtainable professional standards;
6.8 deliver within two (2) weeks of the end of the COMPETITION such other materials as FIBA shall reasonably demand at cost price;
6.9 use the appropriate MARKS in the production of the BASIC FEED of the LICENSEE GAMES only, any other use of the MARKS by the LICENSEE being expressly excluded;
6.10 keep FIBA fully informed with respect to all aspects of production of the BASIC FEED of the LICENSEE GAMES; and
6.11 effect and maintain the usual appropriate production insurances.
7 CONSIDERATION
7.1 In consideration of the rights and benefits granted to the LICENSEE herein, the LICENSEE shall pay to FIBA the amounts set forth in Appendix 3, to be due and payable in accordance with the provisions thereof and this Clause 7. FIBA shall
issue the relevant corresponding invoice(s) to LICENSEE no later than 15 (fifteen) days in advance of the payment date. The LICENSEE agrees that time is of the essence with respect to its payment obligations hereunder.
7.2 All payments by the LICENSEE hereunder are expressed to be exclusive of value added tax and shall be in Euros and shall be made free and clear and without deductions based on any currency control restrictions, import duties, or any sales, use, value added or other taxes or withholdings. Payments shall be made by telegraphic transfer to the following bank account:
FIBA XXXXXX XXXXXX XXXXXX XXXXXX
Euro Account Number: XXXXXX
7.3 The LICENSEE shall pay, and hold FIBA harmless from, all taxes (excluding taxes based on FIBA’s gross income or net profits such as but not limited to corporation or income taxes), charges, assessments or other fees now or hereafter imposed or based upon or resulting from the LICENSEE’s exercise of its rights hereunder. Payment by the LICENSEE of the foregoing shall in no way diminish the fees due to FIBA under this Agreement and if any deductions or withholdings are required by law to be made from any of the sums payable under this Agreement, the LICENSEE shall pay to FIBA such additional sum as shall be required to ensure that the net amount received and retained (free of any liability) by FIBA will equal the full amount which it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding. Notwithstanding the above, to the extent that payment of any of the foregoing is made by FIBA, the LICENSEE shall reimburse FIBA on demand and upon the failure of the LICENSEE to so reimburse FIBA, FIBA shall have all the remedies expressed herein, as well as all other remedies provided by law.
7.4 If the LICENSEE delays in the payment of any sum due under this Agreement, FIBA shall be entitled to charge interest at the rate of two per cent (2%) per year above the LIBOR Euro one (1) month as quoted by the bank referred to in Clause 7.2, on the amount of the delayed payment for the period of the delay, payable on demand. The payment of such interest shall be in addition to, and not in substitution for, any other remedies available to FIBA in respect of non- payment.
7.5 The obligations of the LICENSEE under this Clause 7 shall be performed without any right of the LICENSEE to invoke set-off, deductions, withholdings or other similar rights.
7.6 In the event that the LICENSEE fails to make a payment within fifteen (15) days of a written notice calling upon it to do so all rights will revert to FIBA and the LICENSEE hereby agrees that FIBA shall be entitled to retain all monies previously paid by the LICENSEE and FIBA shall have no further obligations to the LICENSEE.
7.7 If the time, date or place of any COMPETITION is rescheduled and/or modified for any reason whatsoever and extend beyond the term of this agreement then LICENSEE shall be entitled to confirm that all of the terms and conditions of the present Agreement shall continue unaffected save for the License Period that shall be extended as long as the corresponding delay.
8 INTELLECTUAL PROPERTY RIGHTS
8.1 The LICENSEE hereby irrevocably assigns and transfers to FIBA by way of present assignment of, all copyright and other rights, title and proprietary interests without limitation as to time, territory or content in the BASIC FEED of each of the GAMES, the UNILATERAL FEED of each of the GAMES, the RADIO SIGNAL of each of the GAMES and any other feed or material otherwise arising by virtue of its exercise of the RIGHTS granted under this Agreement and the performance of each of its obligations (including those as HOST BROADCASTER pursuant to Clause 6 of these STANDARD TERMS AND CONDITIONS) for the full term of copyright including all renewals, revisions and extensions thereof.
8.2 The LICENSEE acknowledges that FIBA is and shall be for the full duration of the relevant rights, the owner of the copyright, title, interest and all other rights in and to all transmissions of any and all of the audio-visual coverage from the COMPETITIONS, all feeds recorded in connection with the production of the GAMES (including the BASIC FEED and UNILATERAL FEED), the MARKS and other designations, trademarks, names or logos connected to the COMPETITIONS and any other programming owned by FIBA that may be licensed to the LICENSEE from time to time, and to all derivatives of the foregoing.
8.3 When exercising the ANCILLARY RIGHTS, the LICENSEE:
(a) shall not use the MARKS in any manner contrary to public policy or which could be considered to be deceptive or misleading, or which could compromise or reflect unfavourably upon the good name, goodwill, reputation and image of FIBA, the OM, the OC, and/or the COMPETITIONS or which could in any manner be liable to result in unauthorised use of the MARKS or to jeopardise FIBA’s rights therein; and
(b) shall submit to FIBA for its written approval, such approval not to be unreasonably withheld or delayed, representative samples of all
advertising, promotional or other display material to be used by the LICENSEE in connection with the MARKS at least thirty (30) days prior to its release to the public. Any production of promotional products bearing the MARKS shall be coordinated, approved and sourced through FIBA (or any other provider approved by FIBA).
8.4 The LICENSEE acknowledges the great value of the goodwill associated with and attached to the MARKS and that such goodwill belongs exclusively to FIBA. The LICENSEE warrants that it will not during the TERM or thereafter dispute or contest, directly or indirectly, FIBA’s ownership of or goodwill in the MARKS and agrees to provide all reasonable assistance to FIBA in the prevention, control and settlement of any infringement of, or challenge to, the MARKS by third parties.
8.5 The LICENSEE shall ensure that any use of the MARKS shall include all copyright notices and/or trade xxxx xxxxxx(s) necessary for their world-wide protection as instructed by FIBA.
8.6 The LICENSEE shall display the MARKS during its transmissions of each of the COMPETITIONS, in particular as a minimum at the beginning and end of each such transmission.
8.7 The LICENSEE acknowledges and agrees that it may only use the MARKS in promotional material, programmes and brochures solely in connection with the promotion of its broadcasts of the COMPETITIONS. The LICENSEE shall not authorise or purport to authorise any third party to use or identify themselves with the MARKS and in particular, the LICENSEE shall not authorise or purport to authorise sponsors of the LICENSEE's transmissions of any of the COMPETITIONS (which are not COMMERCIAL PARTNERS) to use or identify themselves with any of the MARKS or to avail themselves of any official status, identification or designation in relation to the COMPETITIONS, FIBA, the OM or the OC in any manner whatsoever.
8.8 The LICENSEE shall not be entitled to formulate and use, or permit the formulation and use of any composite mark or logo incorporating the MARKS, or part thereof, for use by third parties other than COMMERCIAL PARTNERS.
9 WARRANTY AND INDEMNITY
9.1 The LICENSEE hereby represents and warrants that:
(a) it is fully entitled to enter into this Agreement and to perform all its obligations hereunder, and that it has not entered into and will not enter into any agreement inconsistent with the provisions hereof;
(b) it will comply with all FIBA’s rules and regulations in force from time to time, the DISTRIBUTION OBLIGATIONS and the FIBA TV MANUAL and all applicable laws and regulations with respect to the exercise of its rights and performance of its obligations pursuant to this Agreement;
(c) it shall defend, indemnify and hold harmless FIBA on demand from and against any and all liabilities, claims, actions, costs, demands, proceedings or direct damages (including attorneys’ fees) arising out of any use by the LICENSEE of the rights granted to it hereunder or any failure to comply with its obligations hereunder; and
(d) it will obtain and pay for all necessary consents, releases and clearances relating to the LICENSEE's recording and broadcast of any music forming part of the BASIC FEED and the UNILATERAL FEED and the HIGHLIGHTS PACKAGES of each of the COMPETITIONS provided that, in respect of FIBA GAMES, FIBA shall provide LICENSEE with the corresponding music cue sheets. It is understood that certain music played at the venue (i.e., “ambient music”) may not be included on such music cue sheets provided by FIBA.
9.2 FIBA hereby represents and warrants that:
(a) it owns all rights and has obtained all clearances necessary to make the grant of rights in the FIBA GAMES and COMPETITIONS hereunder and that is fully entitled to grant the LICENSEE the RIGHTS described herein and to perform all its obligations hereunder, and that it has not entered into and will not enter into any agreement inconsistent with the provisions hereof; and that there are no liens or encumbrances applicable to audio-visual coverage of the FIBA GAMES contained in the BASIC FEED and HIGHLIGHTS PACKAGES, which are true and accurate and are original works.
(b) LICENSEE’s exercise of the RIGHTS granted hereunder will not infringe any intellectual property, privacy or other rights of any entity; and LICENSEE has and will continue to have all licenses, permissions and clearances including music synchronisation license required in order for LICENSEE to exercise the rights in accordance with this Agreement (it is understood that certain music played at the venue (i.e., “ambient music”) may not be included within such music synchronisation license);
(c) FIBA shall defend, indemnify and hold harmless LICENSEE from and against any and all liabilities, claims, actions, costs, demands, proceedings or direct damages (including attorney’s fees) arising out of lawful third party claims against the LICENSEE that the exercise of the
RIGHTS by the LICENSEE in accordance with this Agreement infringes the intellectual property rights of that third party; and
(d) the quality of the BASIC FEED in respect of the FIBA GAMES shall be of a premier internationally accepted signal and suitable for distribution by LICENSEE or its designees.
10 LIABILITY
10.1 Except as expressly set out in this Agreement, all conditions, warranties, terms and undertakings, express or implied, statutory or otherwise in respect of the obligations of FIBA under this Agreement are hereby excluded.
10.2 Notwithstanding anything else contained in this Agreement but subject to Clause 10.4 (save for liability in respect of the indemnities at Clauses 9.1(c) and 9.2(c) of these STANDARD TERMS AND CONDITIONS which shall not be limited by this Clause 10.2), neither party shall be liable, whether in tort, contract or otherwise, to the other for loss of profits, anticipated savings, business, time or goodwill or contracts or for any other indirect or consequential loss or damage in connection with this Agreement.
10.3 Subject to Clause 10.4 (save for (i) liability in respect of the indemnities at Clauses 9.1(c) and 9.2(c) of these STANDARD TERMS AND CONDITIONS; and (ii) the LICENSEE’s liability to pay the amounts set forth in Appendix 3, which in each case shall not be limited by (and, for the avoidance of doubt, shall not otherwise count towards) the maximum aggregate liability amount created by this Clause 10.3), the maximum aggregate liability of either party for any loss or damage in respect of this Agreement shall in no circumstances exceed the total amount paid by the LICENSEE to FIBA under this Agreement.
10.4 Notwithstanding anything else in this Agreement, the exclusions and limitations of liability set out herein shall only apply if and to the extent permitted by law.
11 CO-OPERATION
11.1 FIBA and the LICENSEE agree to liaise and co-operate fully with each other on all matters arising in connection with this Agreement.
11.2 The LICENSEE acknowledges that FIBA has appointed FIBA Media as its exclusive agent for the exploitation of the media rights for the COMPETITIONS. The LICENSEE undertakes to co-operate with FIBA Media in relation to this Agreement. If the instructions to the LICENSEE from FIBA Media contradict instructions issued directly by FIBA, the instructions issued directly by FIBA shall prevail.
12 TERM AND TERMINATION
12.1 This Agreement shall commence and be legally binding on the parties from the date of its signature and, subject to earlier termination in accordance with its terms, shall automatically expire on 31st December 2017 (TERM).
12.2 Without prejudice to Clause 7.6, FIBA may terminate this Agreement by written notice if the LICENSEE fails to make payment of monies to FIBA within fifteen (15) days of a written notice calling upon it to do so.
12.3 Without prejudice to its other rights or remedies, each party may terminate this Agreement by written notice if the defaulting party:
(a) commits a material breach of any of its obligations hereunder (except for payment obligations referred to in Clause 7.1 above (which shall be subject to Clauses 7.6 and/or 12.2)) and does not remedy such failure after being called upon to do so by written notice either:
- within ten (10) days if so called upon not later than twelve (12) days before the beginning of any COMPETITION; or
- within twenty four (24) hours of being so called upon thereafter;
(b) passes a resolution for its winding up or a court of competent jurisdiction makes an order for the winding up or dissolution (other than a voluntary liquidation for the purposes of reconstruction, amalgamation or similar reorganisation) or an administrative order is made in relation to the defaulting party or a receiver is appointed over, or takes possession of, or an encumbrancer sells, any of the defaulting party's assets, or enters into any arrangement or composition with its creditors or any of them, or makes an application to a court of competent jurisdiction for protection from its creditors generally or any equivalent or analogous proceedings or appointments under the law of the jurisdiction in which the defaulting party is incorporated, carries on business or has any assets, or ceases to carry on its business or threatens to cease in carrying on its business. If the defaulting party goes into voluntary or involuntary liquidation, or is declared insolvent either in bankruptcy or other legal proceedings, this Agreement shall automatically terminate without the other party's declaration to this effect if and as far as legally possible.
12.4 Expiration or termination of this Agreement shall be without prejudice to all accrued rights and remedies and shall not affect the continuing rights and obligations of the parties under this Agreement.
12.5 On expiration or earlier termination of this Agreement for any reason whatsoever, all licences and rights granted to the LICENSEE hereunder shall forthwith terminate and shall automatically revert to FIBA without further formality. Thereafter, the LICENSEE shall not transmit any audio-visual coverage of the COMPETITIONS or otherwise exercise any of its RIGHTS hereunder or use or refer directly or indirectly to the MARKS or any of the COMPETITIONS in connection with the MARKS. Upon such expiration or earlier termination, FIBA may grant to others the rights and opportunities granted to the LICENSEE hereunder.
12.6 Forthwith upon expiration or termination of this Agreement:
(a) the LICENSEE shall, at the LICENSEE's election and cost, return to FIBA all master tapes and/or highlight tapes of the BASIC FEED and UNILATERAL FEED of each of the COMPETITIONS supplied pursuant to the LICENSEE’s obligations or destroy such tapes and provide FIBA with certification thereof; and
(b) each party shall return to the other all documents (and all copies thereof) and materials supplied by and/or owned by the other party.
12.7 Without prejudice to any other rights or remedies available to FIBA (including termination), FIBA shall be entitled to suspend the grant of the RIGHTS and the provision of the BASIC FEED to the LICENSEE without liability, compensation or reduction of the payment due under this Agreement where the LICENSEE:
(a) fails to make payment of monies to FIBA within fifteen (15) days of a written notice calling upon it to do so;
(b) distributes, makes available or otherwise exploits any footage for any purpose other than as expressly permitted by this Agreement;
(c) is in breach (or, in FIBA's reasonable opinion, is likely to be in breach) of any applicable law; or
(d) is (or FIBA reasonably believes is likely to be) in breach of this Agreement.
13 FORCE MAJEURE
13.1 If any of the circumstances set out in Clause 13.2 below occur the obligations of the affected party (other than payment obligations) under this Agreement shall be suspended and ineffective for so long as the relevant circumstance continues. The parties agree that such circumstances shall not be considered a breach of this Agreement and shall not entitle either party to claim any indemnification whatsoever.
13.2 The circumstances referred to in Clause 13.1 (above) are:
(a) the COMPETITIONS or any of them are not held or not substantially completed for any reason;
(b) without prejudice to Clauses 4.6 and 16.7, the applicable laws of the country in which a COMPETITION is held are modified so that the provisions of this Agreement cannot be substantially carried out;
(c) storm, earthquake, riot, national state of emergency, war, feed jamming or any other event occurs which prevents the holding of any of the COMPETITIONS or a substantial part of any of them; or
(d) any other reason unforeseen and beyond the control of FIBA or the LICENSEE makes it impossible to carry out this Agreement.
14 ASSIGNMENT
14.1 The LICENSEE shall not be entitled to assign or sublicense its rights or obligations under this Agreement save that it shall be entitled to sublicense its rights (but not its obligations) to any affiliated company within the same group. The LICENSEE shall remain fully liable for the due performance and observance of all obligations under this Agreement and shall cause any such permitted sublicensee(s) to comply fully with all the provisions of this Agreement. The LICENSEE shall promptly notify FIBA of all such sublicences with affiliated companies in advance of their appointment.
14.2 FIBA shall be entitled to assign, sub-license, sub-contract or transfer any of its rights or obligations hereunder freely to any third party of which FIBA has a controlling interest.
15 CONFIDENTIALITY
15.1 During the TERM and after expiry or termination of this Agreement for any reason whatsoever, each party shall keep the terms of this Agreement together with any other information of a confidential nature shared between the parties as part of the operation of this Agreement (CONFIDENTIAL INFORMATION) confidential and shall not disclose the CONFIDENTIAL INFORMATION to any other person other than its employees on a "need to know" basis, nor use the CONFIDENTIAL INFORMATION for any purpose other than the performance of its obligations and exercise of its rights under this Agreement.
15.2 The obligations of Clause 15.1 shall not apply to disclosures of CONFIDENTIAL INFORMATION by the receiving party to its professional advisers, (each a
RECIPIENT) to the extent that it is reasonably necessary in connection with this Agreement provided that each RECIPIENT is made aware of and complies with all the receiving party's obligations of confidentiality under this Agreement as if the RECIPIENT was a party to this Agreement.
15.3 Clause 15.1 shall not apply to any CONFIDENTIAL INFORMATION which at the date of this Agreement or at a later date comes into the public domain other than through breach of this Agreement by the receiving party or any RECIPIENT or subsequently comes lawfully into the possession of the receiving party from a third party, free from any obligation of confidence.
16 GENERAL PROVISIONS
16.1 Any waiver by either party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. Failure by either party to insist upon strict adherence to any provision of this Agreement on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that provision or any other provision of this Agreement.
16.2 All remedies, rights, undertakings, obligations and agreements contained in this Agreement shall be cumulative and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of either party.
16.3 This Agreement does not constitute either party the agent of the other, or create a partnership, joint venture or similar relationship between the parties, and neither party shall have the power to obligate or bind the other or to create a liability against the other in any manner or for any purpose whatsoever other than as expressly provided for herein. The parties hereto shall act in all respects as independent contractors.
16.4 All notices, consents, approvals and statements hereunder shall be given in writing in the English language to the respective addresses of the parties as set forth below, unless notification of a change is given in writing in accordance with this Clause 16.4. Any notice shall be sent by dispatch of a facsimile and confirmed the same day by registered mail and shall be deemed to have arrived at the time of transmission if sent not later than one (1) hour before close of business on a business day or otherwise at the opening of business on the next business day provided that the appropriate answer back confirmation is received by the sender of the facsimile. Notice provided via email shall be deemed served 24 hours after the email is sent. In proving the service of any notice, it will be sufficient to prove, in the case of an email, that the email was sent to the specified email address of the addressee set out below.
FIBA: FIBA
5, Route Suisse,
1295 Mies Switzerland
Attn : Xxxx Xxxxxxxx
Email : Xxxx.Xxxxxxxx@xxxx.xxx Facsimile: (x00) 00 000 0000
cc. FIBA Media (c/o Perform Media Channels Limited) Hanover House
Plane Tree Crescent London, TW13 7BZ United Kingdom
Email: Xxxxx.xxxxx@xxxxxxxxxxxx.xxx
LICENSEE: RADIO AND TELEVISION SLOVAKIA
Mlynská dolina, 845 45 Bratislava
Attn : Xxxxxx Xxxxxxx
Email: Xxxxxx.Xxxxxxx@xxxx.xx
16.5 Each party acknowledges that it has not relied on or been induced to enter into this Agreement by a representation, warranty or undertaking other than those expressly set out in this Agreement.
16.6 This Agreement may not be altered, amended or modified except in writing signed by duly authorised representatives of both the parties hereto.
16.7 In the event of any one or more provisions contained in this Agreement being held for any reason to be unenforceable in any respect under the laws of any country, state or organisation:
(a) such unenforceability shall not affect any other provisions of this Agreement or the enforceability of such provision under any other law;
(b) this Agreement shall be construed as if such unenforceable provisions had not been contained herein; and
(c) the parties shall negotiate in good faith to replace any unenforceable provision by such enforceable provision as has effect nearest to that of the provision being replaced.
In the event of inconsistency between this Clause 16.7 and Clause 4.6, Clause
4.6 shall prevail.
16.8 The LICENSEE shall, at its own cost, do and execute or procure to be done and executed all necessary acts, deeds, documents and things within its power to give effect to this Agreement as may be requested by FIBA (including all documents necessary to give effect to the assignment at Clause 8.1 of these STANDARD TERMS AND CONDITIONS).
16.9 The LICENSEE shall co-operate at all times with other licensees of FIBA. In the event of any dispute arising between the LICENSEE and any INTERNATIONAL BROADCASTER in connection with this Agreement which threatens to adversely affect the rights granted to either party by FIBA, the LICENSEE acknowledges that FIBA shall have the sole authority to resolve any disputes.
17 GOVERNING LAW / ARBITRATION
17.1 This Agreement shall be governed by and interpreted exclusively in accordance with the laws of Switzerland without regard to choice of law principles.
17.2 Any dispute arising from or related to this Agreement including disputes as to its validity, binding effect, amendment and effective termination will be submitted exclusively to the Court of Arbitration for Sport in Lausanne, Switzerland, and resolved definitively in accordance with the Code of sports-related to arbitration. The language of the arbitration will be English. Any decision of the Court of Arbitration for Sport shall be final and binding on the parties. Nothing in this Clause 17.2 shall limit FIBA’s right to seek any provisional or equitable remedy or other relief that is not available through arbitration from any court of competent jurisdiction as may be necessary to protect the BASIC FEED, UNILATERAL FEED, MARKS, FIBA’s CONFIDENTIAL INFORMATION or any other of its proprietary interests or either party’s right to enforce the decision of the Court of Arbitration for Sport through any court of competent jurisdiction.
17.3 This Agreement is drawn up in the English language. If this Agreement is translated into any language other than English, then the English language version shall prevail.