Licenčná zmluva na nákup licenčných práv programov
Licenčná zmluva na nákup licenčných práv programov
(výpis zo zmluvy)
Zmluvní partneri: PATHE PRODUCTION S.A.S.
0, xxx Xxxxxxxxx
75008 Paríž Francúzsko
zastúpená: Xxxxxx Xx Xxxxx
výkonný riaditeľ VAT:FR38780077921
a
Rozhlas a televízia Slovenska
Mlynská dolina, 845 45 Bratislava
IČO: 47 232 480
IČ DPH: SK2023169973
Štatutárny orgán: Xxxxxx Xxxx
Generálny riaditeľ zapísaná: Obchodný register Okresného súdu Bratislava I., Oddiel: Po, Vložka č: 1922/B
Programy: nákup licencie k hraným filmom 8 x cca 100´
Práva a definície: Nákup licenčných práv programov pre vysielanie RTVS na televíznych programových službách Jednotka a Dvojka (dokúpenie licencií na vysielanie)
Trvanie zmluvy: Licenčná doba na 2 roky,
rozsah licencií od 1.3.2016 do 30.5.2018
Licencia na územie: Povolený jazyk:
Slovenská republika
slovenský a český – dabing, titulky
Počet vysielaní: 2 vysielania –každé vysielanie vrátane reprízy do 48 hod.
Vysielacie práva: exkluzívne terestriálne – free TV práva Analógové aj digitálne šírenie
Licenčný poplatok: 20.100,- EUR
Splatnosť licencie: úhrada celkovej sumy po podpise zmluvy a nie neskôr ako pred začiatkom plynutia
licencie
Podmienky dodania materiálu:
Technické náklady za materiál:
Následne po podpise licenčnej zmluvy
á 200,- EUR , celkom 800,- EUR
(dodanie materiálov k 4 filmom)
Technické parametre materiálu:
Prístup k slovenskej jazykovej verzií:
Prores HD 25 fps.
Povolený za úhradu 50% dabingových nákladov.
Ustanovenie o zákonnej povinnosti zverejnenia zmluvy:
za PATHE DISTRIBUTION S.A.S
Xxxxxx Xx Grand výkonný riaditeľ
doplnené v bode 14(d) – Additional Terms & Conditions
za RTVS Xxxxxx Xxxx
generálny riaditeľ
TELEVISION DISTRIBUTION AGREEMENT
DATED: This 12th , day of January 2016
BETWEEN:
PATHE PRODUCTION S.A.S.
Address : 0, xxx Xxxxxxxxx 00000 Xxxxx
France
European VAT number: FR 38780077921 Contact name :xxxxxx.xxxxxxxx@xxxxx.xxx
Phone number : (00 0 ) 00 00 00 00 / Fax number : (00 0) 00 00 00 00 Represented by: Xxxxxx Xx Xxxxx – Managing Director
Hereafter referred to as “Pathe” or “Licensor”
AND ROZHLAS A TELEVIZIA SLOVENSKA
Address Xxxxxxx xxxxxx 000 00 Xxxxxxxxxx
Slovakia Phone number 000 0 00 00 0000 : / Fax number : 000 0 00 00 00 00 European VAT number :_SK2023169973
Contact (E-mail): Xxxxxxxx.xxxxxxxxx@xxx.xx Represented by : Xxxxxx XXXX – General Director Hereafter referred to as the “Distributor”
Hereafter collectively referred to as the “Parties”.
In consideration of and conditional on the payment by the Distributor of the Consideration and all other sums due and owing from time to time to Pathe hereunder and the performance and observance by the Distributor of its undertakings and warranties in this Distribution Agreement (“Agreement”), Pathe agrees to grant the Distributor the Rights in the Film for the Authorised Languages throughout the Territory for the Term and to make available to the Distributor the Delivery Materials (as all such terms are defined hereafter) on and subject to: (i) the Deal Terms attached hereto as Annexure “A” (“Deal Terms”); and (ii) the Standard Terms and Conditions attached hereto as Annexure “B” (“Standard Terms & Conditions”), and all other schedules, appendices and/or attachments attached hereto and referred to herein, each of which shall form an integral part of this Agreement. In the event of any inconsistency between the Deal Terms and the Standard Terms & Conditions, the Deal Terms shall prevail.
This Agreement shall not be effective or binding upon the Parties hereto until it is signed by both Parties and delivered and dated. IN WITNESS whereof the Parties have entered into this Agreement on the day, month and year first above written.
…………………………………………. ……………………………………………
For and on behalf of: For and on behalf of:
Pathe Distributor
By: Xxxxxx Xx Grand By: Xxxxxx XXXX
Its: Managing Director Its: General Director
In the presence of: Xxxxxx Xxxxxx
Deputy Managing Director International Sales
ANNEXURE “A” DEAL TERMS | ||
1. FILM: | ||
Title: | Original version: | Director: |
L’AMANT | English | Xxxx-Xxxxxxx Xxxxxx |
XXXXXXXXX AND CO | French | Xxxxxxx Xxxxx |
DEUX HOMMES DANS LA VILLE | French | Xxxx Xxxxxxxx |
FLIC STORY | French | Xxxxxxx Xxxxx |
MORT D’UN POURRI | French | Xxxxxxx Xxxxxxx |
POUR LA PEAU D’UN FLIC | French | Xxxxx Xxxxx |
TESS | English | Xxxxx Xxxxxxxx |
VALMONT | English | Xxxxx Xxxxxx |
Hereafter individually or collectively referred to as the “Film(s)”.
2. TERRITORY: Slovakia (the “Territory”) for broadcast on Jednotka .
3. AUTHORIZED LANGUAGE(S) : Slovakian and Czech.
dubbed in the Authorized language(s) for all Rights
original version only subtitled in the Authorized Language(s) for all Rights
For avoidance of doubt, the Film(s) shall not be broadcasted in original version without subtitles.
4. TERM: 2 (two) years starting on the date defined below(“Start Date”) and ending on the date defined below (“End Date”) or the last authorized Run as defined below, whichever is earlier on a per Title basis.
Start Date: | End Date: | |
L’AMANT | 01 03 2016 | 28 02 2018 |
XXXXXXXXX AND CO | 01 03 2016 | 28 02 2018 |
DEUX HOMMES DANS LA VILLE | 01 03 2016 | 28 02 2018 |
FLIC STORY | 01 03 2016 | 28 02 2018 |
MORT D’UN POURRI | 01 03 2016 | 28 02 2018 |
POUR LA PEAU D’UN FLIC | 01 03 2016 | 28 02 2018 |
TESS | 01 06 2016 | 30 05 2018 |
VALMONT | 01 06 2016 | 30 05 2018 |
5. RIGHTS GRANTED: Subject to full payment of the Consideration and actual receipt thereof by (or on behalf of) Pathe, and in accordance with the definitions included in the Standard Terms and Conditions attached, the rights granted to the Distributor in the Film in the Territory and Term and Authorised Languages specified above are as follows ("the Rights") and limited to those here below listed in the “Yes” boxes. For the avoidance of doubt where a box remains empty then such rights or option is not included and/or authorised (as the case may be):
Rights here after marked in the “’Yes” box are granted to Distributor on an exclusive / non exclusive basis and when marked in the “No” box are reserved to
Pathe for its unrestricted use and disposition including in the Territory (and hereafter referred to as the “Reserved Rights”). Without prejudice to the foregoing, all Rights in the Film (whether now known or hereafter created) other than those which are expressly licensed to Distributor under this Agreement are Reserved Rights.
5.1 Television Rights
Licensed Distributor’s holdbacks
Pay-Per-View Rights Pay Television Rights
Yes No not applicable
Yes No not applicable
Free Television Rights Yes No not applicable
Number of authorized runs (“Authorized Runs”) :
- 2 (two) runs (with one rerun within 48 hours)
Pay Television Rights and Free Television Rights include either digital or analog terrestrial, cable, satellite and all transmission method existing at the date of signature of this Agreement, any transmission method not existing at the date of signature of this Agreement but created during the Term being subject to Pathe’s prior written approval.
For the avoidance of doubt, Television Rights exclude broadcast and/or reception of the Film through Mobile Networks and/or on the Internet, being understood that, (subject to Pathe controlling the corresponding Rights), if during the Term, broadcasters in the Territory make their broadcast simultaneously available on the Internet or through Mobile Networks, then Pathe shall give good faith consideration to authorizing such practice for the Film provided that Internet or mobile Network availability will only occur simultaneously with a broadcast of the Film(s) and will incorporate technological safeguards that restrict copying and/or downloading of the Film.
For the avoidance of doubt, the Rights herein licensed exclude any form of On Demand Rights, including but not limited to any form of Video on Demand, Catch Up Television and/or any for of Subscription Video on Demand.
5.2 The following terms and conditions shall apply to the Distributor's exploitation of the Rights:
(a) The Distributor shall not be entitled to exploit the Film(s) until sums equal to one hundred per cent (100%) of the Consideration have been paid by Distributor to Pathe;
(b) The Distributor warrants and undertakes that it shall not (and shall procure that any sub-licensee shall not) solicit, direct the Film(s) towards, or advertise the Film(s) for reception by, end users outside the Territory;
6. CONSIDERATION:
In consideration of the Rights herein licensed, Distributor shall pay Pathe:
a Flat Fee (the “Consideration”) of : Euros 20 100 (twenty thousand one hundred Euros )
(net of any and all taxes and charges *).
For the purpose of this Agreement, the Consideration will be allocated as follows :
L’AMANT BORSALINO AND CO DEUX HOMMES DANS LA VILLE FLIC STORY | Euros 2 000 (two thousand Euros) Euros 2 500 (two thousand five hundred Euros) Euros 2 500 (two thousand five hundred Euros) Euros 2 500 (two thousand five hundred Euros) | |
MORT D’UN POURRI | Euros 2 500 (two thousand five hundred Euros) | |
POUR LA PEAU D’UN FLIC | Euros 2 500 (two thousand five hundred Euros) | |
TESS | Euros 2 800 (two thousand eight hundred Euros) | |
VALMONT | Total : | Euros 2 800 (two thousand eight hundred Euros) Euros 20 100 (twenty thousand one hundred Euros) |
The Consideration will be due as follows:
100 % upon signature of this Agreement and no later than the Start Date on a Film basis. Payment Method: Bank transfer (bank charges to be paid by Distributor)
Pathe hereby instructs the Distributor to pay the Consideration and all other monies due hereunder to the Bank Account
Where applicable, Value Added Tax (or any similar and applicable sales tax) shall be paid at the appropriate rate in addition to the amount of any Consideration and any further sums payable to Pathe herein.
7. DISTRIBUTOR’S OBLIGATIONS
Distributor shall not change the title of the Film(s) without Pathe’s prior written approval (which Pathe may give or withhold in its absolute discretion) and shall not exploit the Film(s) in another length and/or image format/version than the original length and image format/version delivered by Pathe without Pathe’s prior written approval (which Pathe may give or withhold in its absolute discretion).
9. DELIVERY OF MATERIALS
(a) Pathe will deliver to Distributor the following materials (“Materials”) :
Prores HD 25 fps for the following Films at Distributor’s Costs (Euros 200 per Prores) for TESS , VALMONT, l’AMANT and BORSALINO AND CO at Distributor’s Cost and expenses
For other Films included in the Agreement, Distributor acknowledges that it is already in possession of the materials and Pathe has no obligation to deliver.
(b) Pathe shall provide Distributor with available advertising and promotional materials (the “Advertising and Promotional Materials”) as and when available .
(c ) All costs and expenses of delivery to the Distributor (Including, without limitation, the costs of shipment, shipping agent, duplication, insurance and technical checking) of all Delivery Materials, Advertising and Promotional Materials and/or Additional Materials (“Delivery Costs”) shall be for the account of the Distributor and shall be pre-paid by Distributor prior to such delivery being made by Pathe. Risk in all Delivery Materials, Advertising and Promotional Materials and Additional Materials shall pass to the Distributor from the moment such materials leave the laboratory or Pathe’s offices as appropriate and the Distributor shall be responsible for insuring all such materials at their full replacement cost from and with effect from such time. All delivery Costs incurred by the Distributor:
(d) Distributor’s order for Delivery Materials and Advertising and Promotional Materials shall be made within 2 (two) months of signature of this Agreement.
(e) Delivery Materials shall be approved within 30 (thirty) days of reception by Distributor (after which it will be deemed approved if not rejected in writing by Distributor).
10. SUBTITLED/DUBBED VERSIONS
Distributor agrees that, at the end of the Term at the latest, Pathe shall have access to the dubbed and/or subtitled version(s) (“Foreign Language(s) version(s)”) created by Distributor for the purpose of this Agreement, financial terms and conditions for such access (“Foreign Language Version Access Fee”) to be negotiated in good faith between Distributor and the third party requesting use of such subtitled/dubbed version (being understood that the Foreign Language Version Access Fee shall not exceed 50% (fifty) percent of actual duly justified costs of the dubbing/ subtitling).
Upon expiry date of this Agreement, unless Pathe asks for access to the dubbed or subtitled version(s) according to the previous paragraph, all materials created by Distributor shall be erased or destroyed with appropriate proof of destruction furnished to ¨Pathe. No materials shall be destroyed without destruction being expressly authorized in writing by Distributor.
It is agreed that, should a Czech and:or Slowak version be available from a third party, Distributor’s access to such version shall be negotiated directly with the third party and Pathe shall in no case be responsible for providing a dubbed and/or subtitled version to the Distributor.
11. COPYRIGHT
Any copyright and anti-piracy notices included on the Film as delivered to the Distributor shall not be amended, deleted or otherwise changed by the Distributor. The Distributor shall, in addition, include the copyright notice as delivered by Pathe, on all paid advertising in respect of or relating to the Film.
12. MISCELLANEOUS
(a) This Agreement shall be governed by and construed in accordance with the laws of France and the parties hereby submit to the non-exclusive jurisdiction of the French courts or the binding I.F.T.A. arbitration with Forum in Paris at Pathe’s sole election.. Notwithstanding the foregoing, nothing in this Agreement shall prevent, restrict or otherwise restrain Pathé from bringing any action against Distributor in the courts of the Territory and Pathé shall be entitled , especially in case of Distributor default of payment of any amount due as per this Agreement to have recourse to all judicial and common law remedies available in the Territory.
(b) All notices or other documents which may be required to be given or delivered hereunder by either party to the other shall be sufficiently given if delivered personally or sent by email or by fax or recorded delivery or registered post addressed to the other at such address as the other may hereafter notify as its address for such service or if none, to the address at the head of this Agreement. Any notice posted in the country of Pathe as above mentioned shall be deemed to have been received five (5) days after the time of posting or at the time of actual receipt if earlier. Any notice sent by fax shall be deemed upon completion of successful transmission to have been received twelve (12) hours after the time of despatch or the commencement of normal business hours on the next working day at its destination if sent outside business hours at such destination. Any notice sent by email shall be deemed to have been received twelve (12) hours after the time it was sent or the commencement of normal business hours on the next working day at its destination if sent outside business hours at such destination.
(c) This Agreement may be executed in any number of counterparts and by the parties to it on separate counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. A counterpart signature page of this Agreement executed by a party and sent by facsimile or transmitted electronically in either Tagged Image Format Files (TIFF) or Portable Document Format (PDF) shall be treated as an original, fully binding and with full legal force and effect, and the parties waive any rights they may have to object to such treatment. The Agreement is not effective until each party has executed at least one counterpart.
13. PARTIES
(a) This Agreement shall be governed by and construed in accordance with the laws of France and the Parties hereby submit to the non-exclusive jurisdiction of the French courts. Notwithstanding the foregoing, nothing in this Agreement shall prevent, restrict or otherwise restrain Pathé from bringing any action against Distributor in the courts of the Territory or elsewhere and Pathé shall be entitled to have recourse to all judicial and common law remedies available in the Territory.
(b) All notices or other documents which may be required to be given or delivered hereunder by either party to the other shall be sufficiently given if delivered personally or sent by email or by fax or recorded delivery or registered post addressed to the other at such address as the other may hereafter notify as its address for such service or if none, to the address at the head of this Agreement. Any notice posted in the country of Pathe as above mentioned shall be deemed to have been received five (5) days after the time of posting or at the time of actual receipt if earlier. Any notice sent by fax shall be deemed upon completion of successful transmission to have been received twelve (12) hours after the time of despatch or the commencement of normal business hours on the next working day at its destination if sent outside business hours at such destination. Any notice sent by email shall be deemed to have been received twelve (12) hours after the time it was sent or the commencement of normal business hours on the next working day at its destination if sent outside business hours at such destination.
(c) This Agreement may be executed in any number of counterparts and by the parties to it on separate counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. A counterpart signature page of this Agreement executed by a party and sent by facsimile or transmitted electronically in either Tagged Image Format Files (TIFF) or Portable Document Format (PDF) shall be treated as an original, fully binding and with full legal force and effect, and the parties waive any rights they may have to object to such treatment. The Agreement is not effective until each party has executed at least one counterpart.
14. ADDITIONAL TERMS AND CONDITIONS
(a) This License is made for broadcast on the channel as defined in Section 2 above only and Distributor is not authorized to sublicense, assign or otherwise transfer the rights herein defined without Pathe’s prior written approval.
(b) It is understood that any broadcast and/or exploitation of the Film included in this Agreement within the Territory originating from outside the Territory in any language other than the Authorized Language(s) and not intended or authorized by Pathe for primary reception within the Territory shall not be considered as a breach of Distributor’s exclusivity by Pathe. In particular, Distributor expressly agrees that Pathe might license the Film to TV5 (for broadcast in original French version and/or original version with French subtitles or subtitled in the Authorized Language(s)) during the Term.
(c) Licensee is expressly authorized to broadcast excerpts of the Film(s) for the promotion of the Film(s) in the Territory provided such excerpts are of a duration of not more than 3 (three) aggregate minutes.
(d) It is agreed that according to the provisions of the Act no.40/1964Zb Civil Code "Radio and Television of Slovakia" is obliged to publish this Contract via Central Register of Contracts of the Government Office of Slovak Republic in its full wording."
End of Deal Terms
ANNEXURE “B”
STANDARD TERMS AND CONDITIONS for PATHE TELEVISION DISTRIBUTION AGREEMENT
1. Definitions
1.1 In this Agreement, the following expressions shall have the following meanings:
1.1.1 Rights Definitions:
“Rights” shall mean the specific exploitation rights set out in the Deal Terms, as further defined in this Clause 1.1.1
“Television Rights” shall mean the right to exercise or exploit any of the Pay Television Rights and/or the Free Television Rights and/or Pay-per-View Rights .
“Pay-per-View Rights” shall mean the right to transmit an uninterrupted linear version of the Film by any Delivery System where a charge is made based on the particular programming that a person receives and not based on the service as a whole and where the person so receiving the programme is able to select the programme but unable to dictate the precise time and day of receipt and/or exhibition.
For the avoidance of doubt Pay-per-View Rights specifically excludes Video-on-Demand Rights, Near Video-On-Demand Rights and Subscription Video-On-Demand Rights.
“Pay Television Rights” shall mean the right to transmit an uninterrupted linear version of the Film by any Delivery System, where such transmission is made: (i) as part of a Private Service in return for a charge to the viewer for the right to view the programme service in which the Film is included (whether by itself or as part of a package of programme services) and/or (ii) as part of a Commercial Television Service for the right to view the programme service in which the Film is included (whether by itself or as part of a package of programme services).
“Free Television Rights” shall mean the right to transmit an uninterrupted linear version of the Film by any Delivery System, where such transmission is made as part of a Private Service without a charge to the viewer specifically for the privilege of viewing either the Film or the programme service in which the Film is included (whether by itself or as part of a package of programme services). For the purposes of this definition, neither governmental television receiver assessments nor taxes will be deemed a charge to the viewer.
“film” shall mean a recording on any medium from which a moving image may by any means be produced.
“Internet” shall mean the global communications system of computer networks accessible by the public which interconnect, either directly or indirectly, individual computers and/or networks by using Transmission Control Protocol/Internet Protocol (TCP/IP) (or derivatives thereof), which may be accessed by means of world wide web and derivative Uniform Resource Locator (URL) addresses and which enables users to engage in two-way transmissions of data over the networks in order to receive content, or any analogous system now existing or hereafter invented. Internet includes, but is not limited to, fixed or wireless networks and transmission via satellite, but does not include Mobile Networks or transmission via Mobile Broadcast Technology.
“Mobile Broadcast Technology” shall mean any wireless technology standard which is used for the point to multi-point broadcast or cellular multicast of audiovisual content to Mobile Devices, including, but not limited to, MBMS, BCMCS, DVB-H, ISDB-T, DAB, DMB-T, MediaFlo or any derivative or successor technology or any combination of them.
“Mobile Device” shall mean a hand-held portable device of standard, ex-factory configuration that: (i) is primarily designed to be used while moving; (ii) supports and implements DRM and all other applicable securities and protections required under the Internet definition; and (iii) uses Mobile Networks to receive and transmit information over the air but excluding, without limitation, any personal computer (including a laptop) and any television set.
“Mobile Networks” shall mean each of the following mobile communications technologies with radio frequency in any band which may be used to facilitate transmission of audiovisual content to a Mobile Device: GSM (including GPRS, EDGE and HSCSD); CDMA; UMTS; W-CDMA and their derivative systems and services or any combination of them but excluding: (i) Mobile Broadcast Technology; and (ii) any fixed wireless systems (including, but not limited to, WiFi, WiMAX, BlueTooth, IrDA and LMDS/MMDS).
“Private Service” shall mean a programme service intended for viewing and enjoyment by individuals in their private living accommodation or outside such accommodation via reception equipment accessed by them for their own private viewing and does not include any service that is intended to be performed to or enjoyed by the public in commercial premises or in areas that are open to the public.
1.2 Unless the context otherwise requires:-
1.2.1 words and expressions used in this Agreement shall (i) if this Agreement is governed by English Law have the same meanings as are assigned to them by the Copyright, Designs and Patents Act 1998 (“CPDA”) and (ii) if this Agreement is governed by French Law have the same meaning as are assigned to them by the Code De La Propriete Intellectuelle (“CPPI”);
1.2.2 all references in this Agreement to Clauses, Schedules, AnNexures and/or Exhibits are to the clauses, schedules, annexures and/or exhibits of this Agreement;
1.2.3 references to any statutes and regulations shall include any amendment, re-enactment or replacement thereof and references to any entity shall include any entity which supersedes or replaces it;
1.2.4 words importing the singular shall include the plural and vice versa and the masculine shall include the feminine and vice versa;
1.2.5 references to periods of time from a given day or the day of an act or event shall be calculated exclusive of that day;
1.2.6 a reference to a day shall mean a period commencing at midnight G.M.T and ending twenty-four (24) hours later.
2. Rights
2.1 The licence granted to Distributor pursuant to this Agreement represents the entire extent of the Distributor’s rights to exploit and distribute the Film. Distributor acknowledges that all copyright and other intellectual property rights in the Film belong to Pathe or its licensors and the Distributor shall not acquire or claim any title to any of the foregoing by virtue of the rights granted to the Distributor by this Agreement.
2.2 The exclusive right to apply for and collect income derived from agencies, societies and organisations such as ANGOA, AGICOA, VGF, SuisseImage, ComPact and other similar organisations established for the purpose of collecting and distributing such income and the exclusive right to collect any other subsidies to be notified to Pathe in writing and any sums receivable by way of blank tape levy or any analogous system is expressly reserved to Pathe. In the event the Distributor receives any such income, it shall be held on trust for Pathe and the Distributor shall immediately notify Pathe of receipt and pay all such sums in accordance with Clause 3.5 of the Deal Terms.
2.3 Distributor warrants that it shall not exploit any of the Rights in such a way as may violate or infringe any rights of any third party and in particular: (i) the Distributor acknowledges and agrees that Pathe has not authorised the Distributor to exploit any of the Rights via satellite outside the Territory; (ii) the Distributor shall not seek customers for Videograms of the Film outside the Territory and shall not maintain any distribution outlet outside the Territory in respect of the Film; and (iii) the Distributor shall not promote or sell Videograms through any Internet service to persons or entities outside the Territory during the Term.
2.4 The Distributor undertakes not to enter into any arrangement with any sponsor in connection with the exploitation of the Rights (or any of them) without the prior written consent of Pathe.
2.5 The parties acknowledge that satellite and over-the-air television transmissions may cause inherent overspill and certain television transmissions are subject to simultaneous cable relay and that the foregoing shall not constitute a breach of this Agreement provided that the reception of such overspill is not specifically authorised and that the parties have made all reasonable endeavours (either by themselves or by imposing obligations on their sub-licensees) to ensure the territorial integrity of any satellite transmission.
2.6 Any authorised exploitation of the Television Rights by means of satellite transmission shall be limited to encrypted transmissions for which decoders are only available within the Territory and the Distributor shall not seek customers for decoders outside the Territory and shall not maintain any distribution outlet outside the Territory in respect of such decoders.
2.7 Subject always to the Distributor fully complying with and procuring full compliance by others with any and all contractual restrictions relating to any such persons, the Distributor shall have the right to use the names of individuals credited in the Film and engaged in its production and to use, reproduce, print and publish the names and voices of artists and characters appearing in the Film solely in connection with the exploitation of the Rights and not for the purpose of advertising or publicity which does not relate directly to the Film.
2.8 The Distributor shall have the non-exclusive right to authorise the use of excerpts from the Film for the purpose solely of advertising and publicising the Film in the Territory during the Term in any medium in respect of which Rights have been granted to the Distributor, provided that such excerpts shall not exceed the time limit set out in the Deal Terms; and be used solely and exclusively for the purpose of directly promoting the Film. Such exploitation of clips in the Film can only be used insofar as any music embodied therein has been expressly cleared for promotional usage. For the avoidance of doubt, Pathe shall be entitled to license excerpts and clips from the Film of any duration and in any manner whatsoever in the Territory at its discretion and without reference to the Distributor.
2.9 All Rights terminate and immediately revert to Pathe upon last Authorized Run as defined in the Deal Terms or expiry or any earlier termination of the Term, whichever is the earlier, free from any claim or encumbrance. The Distributor shall not enter into any sub-licence or similar agreement for the exercise of any of the Rights which continues until after the expiry of the Term.
3. Language Rights
3.1 The Rights granted to the Distributor are limited to exploitation of the Film in the Authorised Language specified in the Deal Terms. In the event that the Authorised Language(s) is/are different to the original language of the Film, the Distributor undertakes and agrees to produce at its own cost and expense a dubbed and/or subtitled version of the Film suitable for first-class international theatrical, video and television exploitation. For the avoidance of doubt Distributor may not use the original language version of the Film without dubbing or sub-titles unless expressly agreed otherwise in writing by Pathe.
3.2 For the avoidance of doubt, Pathe is under no obligation to supply the Authorised Language(s) version of the Film to the Distributor.
4. Cutting and Editing
4.1 Subject to any editing, cutting or dubbing restrictions notified by Pathe to Distributor, Distributor shall not be entitled to (and shall cause its sub-licencees not to) cut or edit the Film in any circumstances SAVE ONLY AS FOLLOWS:
4.1.1 to allow the interpolation of advertisements for television exploitation
4.1.2 to meet censorship requirements of any officially recognised censorship authority in any part of the Territory to achieve the Rating specified in the Deal Terms (or local equivalent) in such part of the Territory;
4.1.3 to create a trailer or to comply with standards and practices (including length or content requirements) for television exhibition (if applicable and licensed to Distributor herein); and
4.1.4 to make foreign language sub-titled or dubbed versions of the Film in accordance with Clause 3 of these Standard Terms & Conditions.
PROVIDED THAT any changes made pursuant to Clauses 4.1.2 and 4.1.3 shall be subject to Pathe’s prior written approval and any changes made pursuant to Clause 4.1.2 and 4.1.3 shall be subject to the Director or any other individuals nominated by Pathe (subject to their reasonable availability and at their own cost) having the first opportunity to perform or supervise such cutting and editing and PROVIDED FURTHER THAT if the Distributor makes a sub-titled or dubbed version of the Film the Distributor warrants that such sub-titling or dubbing shall be effected in such a way that the essence of the Film shall not be modified by the translation of the dialogue of the Film which the Distributor warrants shall be true and accurate.
4.2 The Distributor undertakes to use the music incorporated in the original version of the Film exclusively in context and in its entirety and shall not use any such music in any out-of-context advertising, publicity and/or trailers without the prior written approval of Pathe.
4.3 The Distributor undertakes and agrees that title to any and all materials created by or on behalf of the Distributor in connection with the Film shall vest in Pathe absolutely from the moment of its creation and shall be held by the Distributor on trust for Pathe absolutely during the Term. The Distributor shall have the right to use such materials solely for the purpose of exploiting the Rights specifically licensed to the Distributor in this Agreement and the Distributor agrees that Pathe shall at all times during the Term on reasonable prior notice have free and unrestricted access to such materials. Without prejudice to the foregoing and by way of confirmatory assignment, the Distributor hereby assigns to Pathe the entire copyright and all other rights in and to any non-original language version of the Film created by or on behalf of the Distributor (including without limitation any and all rights in sound recordings visual element, captions and other literary dramatic musical or artistic material) for the full period of copyright protection including any and all renewals reversions or extensions now or in future existing under the laws in force throughout the world subject only to the licence of Rights granted to the Distributor in this Agreement.
5. Delivery and Materials
5.1 In this Agreement, “Delivery” shall mean delivery of the Notice of Availability (as defined in the Deal Terms) from Pathe to Distributor. Upon receiving a Notice of Availability from Pathe, the Distributor shall appoint an international shipping agent (the “Shipping Agent”) responsible for effecting delivery of the materials specified in the Notice of Availability to the Distributor and shall notify Pathe of the identity and address of such Shipping Agent. Pathe or its agent shall liaise with the Shipping Agent in order to transfer the Delivery Materials from Pathe’s laboratory or office to the Distributor’s nominated shipping address and subject always to the Distributor having paid for the costs of manufacture and delivery of such Delivery Materials in accordance with Clause 5 of the Deal Terms. Risk in all materials so transferred shall pass to the Distributor from the moment such materials leave the laboratory or Pathe’s offices as appropriate and the Distributor shall be responsible for insuring all such materials at their full replacement cost from and with effect from such time. In any event, where Pathe has issued a Notice of Availability, Distributor shall place an order for initial release materials and other available distribution materials within two (2) months of Pathe’s Notice of Availability
5.2 Pathe shall not be liable for any loss or delay attributable to the Shipping Agent.
5.3 The Distributor undertakes promptly to examine all Delivery Materials delivered to the Distributor under this Agreement in order to verify they are suitable for the exercise of the Rights granted to the Distributor. If any print material or pre-print material delivered to the Distributor is of such quality as to make it technically unfit for the Distributor to exercise the Rights granted to the Distributor the Distributor shall give immediate notice in writing to Pathe specifying the particular defect and shall return all defective materials. Pathe shall on receipt of defective materials returned by the Distributor provide the Distributor with substitute print and/or pre-print material free of charge if Pathe in the exercise of its reasonable opinion is satisfied that such materials are defective and were defective at the time when they left the laboratory or Pathe’s offices. In all other cases Pathe’s obligation to provide replacement materials shall be subject to the Distributor pre-paying the cost of manufacture and delivery.
5.4 Unless Pathe receives notice in writing specifying any defect in Delivery Materials fifteen (15) days following the earlier of delivery of such materials to the Distributor and/or the Shipping Agent such material shall be deemed to be of technically acceptable quality for the purposes of this Agreement.
5.5 Where any Delivery Materials are provided to the Distributor on loan (at such times to be agreed in advance in writing by Pathe) the Distributor shall be responsible for obtaining and maintaining insurance for the full replacement value of such materials at all times while in the possession of the Distributor or in transit or while in the possession of any laboratory authorised by the Distributor. The Distributor undertakes to return all such materials to Pathe no later than thirty (30) days after the earlier of the date the materials were first made available to the Distributor and/or its Shipping Agent or nominated laboratory.
In case Materials sent on loan are returned damaged (in the Pathe’s laboratory sole opinion) or not received by Pathe in the delay above mentioned, Distributor shall pay all costs for replacement and /or restoration of such Materials (at the customary price of the Laboratory holding the internegative of the Film) immediately.
5.6 On the expiry or sooner termination of the Term the Distributor undertakes at its sole cost and expense to return to Pathe all Delivery Material delivered pursuant to this Agreement (other than material provided by way of loan which shall be returned in the time stated in Clause 6.5 above) and all other materials manufactured by the Distributor in connection with the Film. Notwithstanding the above Pathe may in its sole discretion require any or all of such materials or parts of them to be destroyed by the Distributor at the Distributor’s cost and the Distributor undertakes if so requested to provide Pathe with certification of such destruction in a form acceptable to Pathe within thirty (30) days after such request.
5.7 The Distributor is not entitled to order any of the Delivery Materials from any third party. All orders must be directed to the person specified in the Notice of Availability.
5.8 The Distributor undertakes not to make or cause to be made any copies of any part of the Delivery Materials delivered to the Distributor under this Agreement other than to permit the proper exercise of the Rights granted to the Distributor.
5.9 In the event that the Distributor makes or causes to be made any material pursuant to this Clause or pursuant to the terms of any laboratory access letter the entire property and title in all such materials shall vest in Pathe and shall clearly be marked as the property of Pathe.
5.10 The Distributor undertakes to give Pathe free and unrestricted access at all times throughout the Term subject to reasonable prior notice to all materials made by or on behalf of the Distributor in relation to the Film to permit Pathe or its licensees to copy and/or duplicate such materials.
5.11 Without prejudice to the copyright notice contained in the end credits of the Film, as provided by Pathe to the Distributor, the Distributor shall include on every copy of the Film distributed pursuant to this Agreement and on all related packaging (i) the relevant copyright notices; and (ii) customary anti-piracy notices (substantially in the form used by the US Studios in the Territory).
6. Pathe Warranties
Pathe warrants, represents and agrees that it has the exclusive right to grant the Rights licensed pursuant to the terms of this Agreement.
Except as expressly contained in the present Article, Pathe makes no warranties or representations of whatsoever kind or nature whether implied by law, statute or otherwise.
7. Distributor’s Undertakings and Warranties
7.1 The Distributor warrants undertakes and agrees with Pathe:
(a) not by any act or omission to impair or prejudice the copyright in the Film or to allow any third party to obtain any lien or right to possess any materials in connection with the Film and to take all necessary steps to have the copyright in the Film protected throughout the Territory during the Term;
(b) not to enter the Film for presentation in any festival or similar event without the prior approval of Pathe;
(c) not to give charity performances or other free performances of the Film without the prior approval of Pathe and at all times to exhibit the Film only in its entirety;
(d) not to permit or suffer any of the Delivery Materials to be duplicated otherwise than in proper performance of this Agreement or permit the Delivery Materials or any other materials created from them to be taken out of the Territory or otherwise licensed beyond the Term;
(e) that it is authorised to enter into and give effect to this Agreement and that the Distributor is not a nominee or agent of any undisclosed principal;
(f) to submit the Film to all competent censorship authorities and to keep Pathe fully informed as to the same and, subject always to these Standard Terms & Conditions, to make cuts required by any such competent censorship authorities;
(g) not to permit or authorise the exhibition or broadcast of the Film under such circumstances or in such places or by such means as may infringe the music performing rights in the Film, it being expressly acknowledged that the Rights are subject to the rights of composers, authors, music publishers and performing rights societies with regard to the performance of the music synchronised with the Film;
(h) to give full particulars to Pathe in writing immediately of any claim or threatened claim arising out of the exploitation of the Film;
(i) other than as provided these Standard Terms & Conditions, the Distributor shall not itself cut edit or otherwise alter the Film or the main and end titles of the Film nor shall it authorise or permit the same, and in no event shall the Distributor cut fade or otherwise fail to exhibit the credit titles trade marks logos and copyright notices and symbols on any materials supplied or manufactured hereunder in relation to the Film;
(j) to comply with all credit obligations as advised by Pathe and not to make or permit to be made in any advertising publicity or otherwise statements which may be understood to be an endorsement of any production article or service other than the Film itself by anyone associated with the Film;
(k) not to apply revenues derived from the exploitation of the Film against liabilities for or in connection with the distribution or exploitation of any other film whether or not the licence therein was granted by Pathe;
(l) to pay the Consideration and all other sums payable under this Agreement promptly on the due dates, time being of the essence. Any sums outstanding and unpaid shall bear interest at the rate of half a per cent (0.50%) for each week. This sub-clause shall not prejudice any rights of termination or other rights available to Pathe under this Agreement;
(m) to pay all royalties (if any) due to collection societies in the Territory (including, without limitation PRS and/or SACEM or its affiliated agencies and/or societies) with respect to performing rights in the music contained in the Film and, if any, the mechanical reproduction on Videograms of the music contained in the Film (any such payments to be recouped by Distributor as a distribution expense);
7.2 Distributor further warrants and undertakes to indemnify Pathe and keep Pathe and any Licensor (as the same may be defined in the Deal Terms) indemnified from and against all actions proceedings costs claims damages and demands howsoever and whensoever incurred or arising or paid by Pathe and/or Licensor or awarded to or against Pathe and/or Licensor in respect of or arising out of any breach or non-performance by the Distributor of all or any of the Distributor's warranties undertakings or obligations in this Agreement;
8. Termination
8.1 It shall constitute the repudiation by the Distributor of its obligations under this Agreement and Pathe shall be entitled to accept such repudiation terminating the Distributor's rights under this Agreement by written notice if:
(a) the Distributor fails to pay any amount due under this Agreement or any other agreement between Pathe and Distributor in full within five
(5) business days of its due date and has continued to fail to do so within five (5) business days after notice from Pathe requesting the same has been served on the Distributor PROVIDED THAT in the case of a breach of this Agreement under this Clause that is remedied and then repeated, Pathe shall be entitled to terminate this Agreement and no period for the remedy of such repeated breach shall apply;
(b) the Distributor is in breach of any material term of this Agreement which is incapable of remedy or if capable of remedy is not remedied within five
(5) business days of the Distributor becoming aware of it and PROVIDED THAT in the case of a breach of this Agreement that is remedied and then repeated, Pathe shall be entitled to terminate this Agreement and no period for the remedy of such repeated breach shall apply;
(c) any of the Distributor's representations shall prove to have been incorrect when made or become materially incorrect and Pathe's rights and entitlements under this Agreement are in the sole opinion of Pathe materially and adversely affected;
(d) Distributor infringes Pathe's rights in the Film or fails to ensure (either by itself or through its arrangements with sub-licensees) that the Film is adequately protected against unauthorised exploitation;
(e) the Distributor transfers disposes of or threatens to transfer or dispose of any part of its assets which is material in the opinion of Pathe;
(f) any indebtedness guarantee or similar obligation of the Distributor or of any guarantor of the Distributor becomes due or capable of being declared due before its stated maturity or is not discharged at maturity or the Distributor or any guarantor of the Distributor defaults under or commits a breach of the provisions of any guarantee or other obligation (whether actual or contingent) of any agreement pursuant to which any such indebtedness guarantee or other obligation was incurred all or any of which shall in Pathe's opinion materially affect its rights and entitlements under this Agreement;
(g) the Distributor is declared or becomes insolvent or the Distributor convenes a meeting of its creditors or proposes or makes any arrangement or composition with or any assignment for the benefit of its creditors or a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the Distributor (save for the purpose of and followed by a voluntary reconstruction or amalgamation previously approved in writing by Pathe) or if an encumbrancer takes possession of or a trustee receiver liquidator or similar officer is appointed in respect of all or any part of its business or assets or any distress execution or other legal process is levied threatened enforced upon or sued out against any of such assets; or
(h) the Distributor shall abandon or announce its intention to abandon the business of distributing films.
8.2 If the default is incapable of cure, or if Distributor fails to cure within the time provided, then Pathe may proceed against Distributor for all available relief, including terminating this or any other distribution agreement where Pathe and Distributor, or any of their affiliates are parties, retroactive to the date of default.
9. Effect of Termination
9.1 If Pathe shall terminate this Agreement:
(a) Pathe shall be entitled to take possession of all or any part of the Delivery Materials delivered to the Distributor and any and all materials manufactured from them;
(b) all rights licensed to Distributor herein shall automatically and immediately revert to Pathe and Pathe shall be entitled to the entire benefit of all contracts entered into by Distributor for the purpose of exploiting the Rights granted herein (the “Distributor's Contracts”) which shall be deemed to have been assigned and vest automatically and immediately in Pathe and Pathe shall also be entitled to take possession of all records business information and other documents relating to the Distributor's Contracts;
(c) as successor in title of the Distributor Pathe shall be entitled to service and otherwise fulfil the Distributor's Contracts or such of them as Pathe may in its absolute discretion think fit;
(d) Pathe shall be entitled to receive and recover from the exhibitors and/or distributors as appropriate all money payable or to become payable under the Distributor's Contracts which moneys shall belong to and be retained by Pathe for its own use and benefit absolutely;
(e) notwithstanding Pathe's election to terminate this Agreement, Pathe shall be entitled to retain for its own account by way of liquidated damages any moneys previously paid by Distributor to Pathe without prejudice to such other rights and remedies which Pathe may have whether at law or in equity.
9.2 The Distributor undertakes to do any and all acts and execute any and all documents in such manner and at such location as may be required by Pathe in its sole discretion to protect perfect or enforce any of the rights granted or confirmed to Pathe pursuant to this Agreement (including, without limitation, in the event of any termination). As security for the performance by the Distributor of the Distributor's obligations under this Agreement if the Distributor shall have failed following fourteen (14) days' notice from Pathe to execute any document or perform any act required pursuant to this Agreement Pathe shall have the right to do so in the place and stead of the Distributor as the lawfully appointed attorney of the Distributor and the Distributor undertakes and warrants to confirm and ratify and be bound by any and all of the actions of Pathe pursuant to this Clause and such authority and appointment shall be a power coupled with an interest and shall be irrevocable.
10. Force Majeure
10.1 Failure by either party to perform its obligations or delay in such performance as a result of Act of God war strikes lock-outs shortened working hours other industrial action machine breakdown fire flood explosion or injunctions judgements adverse claims having specific relevance to the Film or any other cause beyond its reasonable control shall not constitute a breach of the terms of this Agreement PROVIDED THAT such party shall use all reasonable endeavours to resume the performance of its obligations hereunder as soon as practicable after the conditions (as aforesaid) causing such failure have ceased.
10.2 If for any reason set out in Clause 10.1 above the Film cannot be delivered to the Distributor then Pathe shall have the right to cancel this Agreement in which event Pathe shall return any amounts paid by the Distributor to Pathe and the Distributor shall have no claim in damages whatever against Pathe.
11. Miscellaneous
11.1 Except as expressly permitted herein (if at all), the Distributor shall not be entitled to assign license charge or otherwise deal with any of its rights and obligations under this Agreement without the prior written approval of Pathe and notwithstanding any such approval the Distributor shall remain primarily liable to Pathe under this Agreement. Pathe shall be free to assign the benefit of this Agreement to any third party.
11.2 The rights licensed under this Agreement shall be treated as separate and apart from any other rights licensed or to be licensed by Pathe to Distributor. Payments applicable to this Agreement shall therefore be treated as separate and apart from payments due to Pathe by Distributor under any other agreements between Pathe and Distributor, and the payments due under this Agreement shall therefore not be cross-collateralised or set-off against any payments due to Pathe under any other agreements, nor shall claims made by Distributor in relation to any other agreements it may have with Pathe be set-off or cross-collateralised with any payments due to Pathe under this Agreement.
11.3 Nothing in this Agreement shall be deemed to constitute a partnership between the parties and the Distributor shall not hold itself out as the agent of Pathe or the Licensor.
11.4 No waiver by a party of any breach of any of the provisions of this Agreement shall be construed as a continuing waiver or a waiver of any preceding or succeeding breach of the same or any other provision.
11.5 This Agreement constitutes the entire agreement between the parties and supersedes any and all arrangements whether oral or written relating to the Film (including, if entered into, the Memorandum of Agreement between Pathe and the Distributor in respect of the Film, which shall be deemed to be superseded with effect from the date of this Agreement). The Distributor acknowledges that Pathe has not made any warranty or representation in relation to the Film save for those contained within this Agreement and acknowledges that any amendment or variation to this Agreement is required to be in writing and signed by an authorised representative of both parties.
11.6 The headings in this Agreement are for convenience only and shall not limit govern or otherwise affect the construction of any provision of this Agreement.
11.7 The Parties do not intend to confer any benefit on any third party and do not intend that any third party shall have any right to enforce this Agreement.