Licenčná zmluva na nákup licenčných práv programov (výpis zo zmluvy)
Licenčná zmluva na nákup licenčných práv programov (výpis zo zmluvy)
Zmluvní partneri: UNIVERSAL STUDIOS LIMITED
0 XXXXXXX XX. XXXXX XX GILES HIGH STREET LONDON WC2H 8NU
Veľká Británia VAT č. 440627467
a
Rozhlas a televízia Slovenska Mlynská dolina, 845 45 Bratislava
IČO: 47 232 480
IČ DPH: SK2023169973
zastúpená: Xxx. Xxxxx Xxxxxx
generálny riaditeľ
zapísaná: Obchodný register Mestského súdu Bratislava III., Oddiel: Po, Vložka č: 1922/B
Programy: Animované seriály a sólo animované tituly v celkovom objeme cca 50 hodín.
Práva a definície: Nákup licenčných práv programov pre vysielanie RTVS na televíznych programových službách Jednotka a Dvojka
Trvanie zmluvy: Licenčná doba na 2 roky,
Rozsah licencií pri jednotlivých tituloch od 1.10.2023 do 28.2.2026
Licencia na územie: Povolený jazyk:
Slovenská republika
slovenská jazyková verzia – dabing
Počet vysielaní: 2 vysielania s reprízou do 48 hodín mimo prime- time od 20:00 do 23:00 hod.
Vysielacie práva: Terestriálne – Free TV práva exkluzívne
Licenčný poplatok:
Splatnosť licencie:
46.000,- EUR
100% splátka po podpise zmluvy k 30.11.2023
Podmienky dodania materiálu: po úhrade príslušnej sumy na účet partnera
do 30 dní od pripísania platba na účet partnera
Technické náklady za materiál: žiadne – materiál bude dodaný bezodplatne
Technické parametre materiálu: HD material Digital File
Partner poskytne tituly v existujúcich českých a slovenských verziáach, ktoré boli v minulosti vysielané na teritóriu SR a sú jeho majetkom
Dátum dodania materiálu: Prístup k jazykovým verziám:
Ustanovenie o zákonnej povinnosti zverejnenia zmluvy:
za UNIVERSAL STUDIOS LIMITED.
Následne po úhrade zmluvnej čiastky
Prístup majiteľa licencie k jazykovým verziám možný za úhradu 50% dokladovaných výrobných nákladov RTVS (časť zmluvy RIDER, bod 3/e).
Doplnené v časti zmluvy RIDER, bod 1.
Zmluva bude publikovaná v upravenej verzií, ktorá je súčasťou originálu.
za RTVS
Xxx. Xxxxx Xxxxxx generálny riaditeľ
ANNEX II
Contract #: 5048809 - 2 / 160046 - 2 Contract Date: SEPTEMBER 20, 2023
The undersigned ROZHLAS A TELEVIZIA SLOVENSKA (“Licensee”) hereby licenses from UNIVERSAL STUDIOS LIMITED ("Licensor") and agrees to accept the following Films/TV Movies/TV Specials/Series ("Program") for television exhibition pursuant to all the provisions contained below and to the Additional Provisions attached hereto, over the originating transmitter of the channel as set forth in the SCHEDULE.
SCHEDULE
Licensed Channels : DVOJKA / JEDNOTKA
Authorized Languages : Slovakian and Czech language (dubbed and/or subtitled)
Licensed Territories : Slovakia
Deal Name : Family Animation Package 2023 - FTV & BAS - Slovakia
Films/TV Movies/TV Specials
No. of Films/TV Movies/TV Specials
: See Exhibit A
l
t )
Price per Film/TV Movie/TV : See Exhibit A
Special
TV Series/Season : See Exhibit A
No. of Episodes : 117
t )
Price per Episode : See Exhibit A
Total License Fee : €46,000.00
License Fee Payments : See Payment Provision
License Start Date : See Exhibit A
License End Date : See Exhibit A
When this instrument has been executed by Licensee and on behalf of Licensor by its authorized signer, it shall become binding between the parties hereto.
THIS AGREEMENT INCLUDES THE ADDITIONAL PROVISIONS OF AGREEMENT AND ANY RIDERS, SCHEDULES, EXHIBITS AND ANNEXES ATTACHED HERETO.
Licensor: Licensee:
UNIVERSAL STUDIOS LIMITED ROZHLAS A TELEVIZIA SLOVENSKA
0 XXXXXXX XX. XXXXX XXXXXXX DOLINA,
ST. GILES HIGH STREET BRATISLAVA, SLOVAKIA 84545 LONDON WC2H 8NU
GREAT BRITAIN
By: By:
I
e
ADDITIONAL PROVISIONS OF AGREEMENT
1. DEFINITIONS.
Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in Annex I hereto.
2. TELECASTING RIGHTS.
Subject to the terms of this Agreement and to the extent Licensor controls the necessary rights, Licensor hereby grants to Licensee, and Licensee accepts, a limited license to transmit in its entirety during the applicable License Period each Program licensed hereunder the number of times specified in the Schedule page of this Agreement (hereinafter, the "Schedule") or on the attached Exhibit A, whichever is applicable, only in the Authorized Languages and in the territory (the "Licensed Territories”), in high definition (“HD”) only in a linear manner on a single free television channel or channels owned and operated by Licensee and as identified in the Schedule (the "Licensed Channels"), via (i) UHF/VHF over-the-air terrestrial transmission (whether analog or digital; provided that the digital signal is a simultaneous retransmission of the analog version), which is intelligibly receivable by use of antenna without any other device and (ii) the free simultaneous linear, unaltered, unabridged encrypted retransmission via Authorized Networks, solely to viewers in the Licensed Territories, in each case for which no fee is charged (other than fees charged by an applicable government agency for the operation of TV sets).
Licensee shall not authorize any telecast hereunder to be amplified, retransmitted or relayed on the same or any other frequency by any translator or booster station, satellite, community antenna system or any other device or method not expressly authorized herein. Licensee shall transmit each Program licensed hereunder as delivered including, without limitation, credits, billings, distributor and production logo(s) and copyright notices. For the avoidance of doubt, in no event shall Licensee have the right to exhibit or transmit the Program licensed hereunder via any form of mobile, (A)DSL, Internet or other on-line systems or technologies (except as specifically provided herein).
3. LICENSE PERIOD.
The License Period of each Program licensed hereunder shall commence on the Start Date specified in the Schedule or Exhibit A or such other start date as may be specified by Licensor. The License Period shall expire upon the earliest to occur of (i) the End Date specified herein by Licensor, (ii) the date of the last telecast or (iii) such date that Licensor provides Licensee with notice of termination in accordance with this Agreement.
4. PAYMENT.
Licensee agrees to pay Licensor the License Fee for each Program licensed hereunder as specified in the Schedule or Exhibit A, whether or not all telecasts authorized for each Program actually occur. The License Fee shall be paid in U.S. Dollars (unless as otherwise specified in the Schedule) and remitted to Licensor's account as specified in Licensor’s invoice(s). If all licensed telecasts for a Program are completed prior to full payment of the License Fee, Licensee agrees to pay Licensor the balance of the License Fee no later than the first day of the month following the last telecast. Licensee will make each payment no later than the date(s) specified in this Agreement, irrespective of its receipt of an invoice or other itemized list of amounts owed. Any payment not made within thirty (30) days of its due date shall, at Licensor's discretion, bear interest at fifteen percent (15%) per year but in no event greater than the maximum permitted by applicable law, such interest to accrue from the due date until paid. If Licensor engages the services of a collection agency or independent legal counsel to collect any past due monies owed by Licensee under this Agreement, Licensor will be entitled to full reimbursement from Licensee for all reasonable costs and expenses incurred in these collection efforts. Acceptance of any payment after its due date shall not constitute a waiver by Licensor of any of its rights except as to such payment.
The payments due by Licensee hereunder are not dependent upon the technical acceptance of the Videotape delivered hereunder or receipt of any invoice issued by Licensor.
5. USAGE REPORTS.
Licensee agrees to notify Licensor by twenty (20) days after the end of each calendar month in which any
telecasting is scheduled hereunder as to the Program title and the time and date of each telecast during the preceding month.
6. DELIVERY AND RETURN OF MATERIALS.
Upon Licensee's request, Licensor shall deliver to Licensee (or shall provide Licensee with access to) either
(i) one standard definition videotape or digital file or (ii) one high definition videotape or digital file, in each case, to the extent available to Licensor at no additional cost (each such videotape or digital file, a "Videotape") of each Program licensed hereunder, under the following terms, conditions and procedures:
a. At the same time as Licensee requests to receive the Videotape for a Program licensed hereunder, Licensee shall specify whether it wants to receive a standard definition version or a high definition version and whether it wants to receive a videotape or a digital file. For the avoidance of doubt, if a Program licensed hereunder is not available in high definition to Licensor, Licensor shall not be obligated to make available and shall not be in breach of this Agreement for not making available such high definition version of that Program.
b. Licensee shall give Licensor reasonable advance notice in writing of the date on which Licensee intends to initially telecast a designated licensed Program but in any event not later than forty-five (45) days prior to Licensee's initial telecast date.
c. Subject to the other provisions of this Paragraph, to the extent reasonably possible, Licensor agrees to deliver a Videotape of each licensed Program no later than thirty (30) days prior to the Start Date of each such Program. Licensee shall return Licensor's videotapes (if applicable) within thirty (30) days after receipt.
d. Delivery by Licensor within the meaning of this Paragraph shall be deemed completed when Licensor has done any of the following: (i) physically delivered a videotape (if applicable) of the licensed Program to Licensee or its designated agent; (ii) placed a videotape (if applicable) of the licensed Program in the possession of an air express company or other carrier selected by Licensor for transmission to Licensee by collect shipment; or (iii) has uploaded the digital file (if applicable) of the licensed Program to Licensor's designated digital delivery system. Licensee shall notify Licensor if such shipment is not received. Any digital files delivered under this Agreement will be delivered or made available in accordance with Licensor's standard technical specifications.
e. Licensee shall have the right, at its expense, to manufacture a single copy ("Licensee's Copy") of each Program solely for use in exhibiting the Program in accordance with the terms of this Agreement. Licensee shall take all reasonable steps including, without limitation, using the best technology and state-of-the-art equipment then currently available to prevent theft and unauthorized copying of Licensor's source material and Licensee's Copy.
Licensee's Copy and all other materials related to the Program shall be returned to Licensor or erased (upon completion of the License Period), at Licensor's option and discretion unless this Agreement is earlier terminated. If Licensor has elected erasure, then Licensee shall furnish Licensor with a notarized Certificate of Erasure in a form and substance satisfactory to Licensor and signed by an authorized representative of Licensee. Licensee may then retain the blank videotape or other exhibiting device as Licensor may designate.
If Licensee fails to return any tape, print, reel or container for any reason, or the same is damaged between the time of delivery by Licensor and return by Licensee, Licensee shall immediately advise Licensor and pay Licensor the cost of replacement. Such payment shall not transfer title to any such materials to Licensee or any third party. Any damage to Licensor's videotapes when returned to Licensor, shall be deemed damaged by Licensee unless Licensee advises Licensor of such damage prior to Licensee's manufacture of Licensee's Copy. In no event shall Licensee cause, permit or authorize the copying, duplication, recording or transcription of the Program licensed hereunder, or sublet or part with possession or control of any of Licensor's videotape or Licensee's Copy, except to permit the transmission, shipment and duplication specifically authorized herein.
f. All costs (including, without limitation, all taxes, duties, second use fees, mastering, duplication, delivery, shipping, insurance, marketing and forwarding charges) involved in the supply by Licensor, use by Licensee and return of all the foregoing materials shall be borne by Licensee. Without limiting the foregoing, any and all costs associated with Licensor (or Licensor's designated representative)
delivering or otherwise making available any high definition version of any Program licensed hereunder and any other related materials of that Program shall be borne solely by Licensee, including, without limitation, any costs associated with any conversions, clones, audio laybacks, etc. with respect to such high definition materials. The costs will be billed to Licensee either by Licensor or Licensor's designated representative and Licensee shall pay such costs within thirty (30) days of receipt of invoice.
g. Licensee recognizes the substantial value of the goodwill associated with the Program (including without limitation any of its underlying properties and materials), and that the names associated with the Program have a secondary meaning in the mind of the public. As between Licensor and Licensee, all right, title and interest in and to all materials relating to the Program (including Licensee's Copy), and the contents thereof, including, without limitation, the copyright, trademark and all other rights in and to the Program, shall at all times be and remain in perpetuity throughout the universe with Licensor, without reservation or restriction.
7. EDITING.
Except for the insertion of commercials as herein authorized in accordance with the Paragraph entitled COMMERCIALS in this Agreement, Licensee may, after receipt of Licensor's prior written approval, make to Licensee’s Copy only minor cuts or alterations in the dramatic portion of the Program which are necessary in order to (i) conform to its practices and standards which are applicable to all program exhibited by it or (ii) make the Program suitable for programming in the applicable time period. Furthermore, Licensee shall not cut, alter or add to the videotape or any part thereof, or insert sub-titles or voice-overs or dub any voices in the videotape unless otherwise authorized by Licensor, or copy, duplicate or serialize any Program or part with possession of any Program in violation of any agreement except as may be necessary to permit the exhibition and shipment provided for hereunder.
Licensee represents, warrants and agrees that to the extent the use of a performance by any Person may be incorporated into a promotion or advertisement for the Program, it will obtain all necessary consents and clearances for the performance of any language voice-over talent (and any other talent utilized by Licensee and permitted by Licensor) or the display or distribution of creative materials in connection with this Agreement and Licensor’s further use of such performances and materials.
All such editing, to the extent approved by Licensor, is further subject to, and Licensee agrees it shall abide by, any and all restrictions upon editing contained in agreements and relevant provisions of applicable guild agreements and other third-party agreements. Any proposed changes are to be made in as artistic a manner as possible so as not to materially change or impair the story. For example, editing the performance of any performer in any manner which would discredit, adversely or unfavorably reflect upon, or otherwise demean, degrade or ridicule such performance is prohibited. Licensee shall indemnify Licensor against any costs, claims, liabilities, losses, judgments and expenses including, without limitation, attorneys’ fees, which Licensor may incur as a result of Licensee's cuts or alterations. In no event shall credits, billings, copyright notices or distributor or production logos be omitted, deleted or altered in any manner from the exhibition of any of the Program.
8. DEFECTIVE MATERIALS.
Licensee shall examine Licensor's material immediately upon receipt of it. If material, when first received by Licensee, is so defective as to be unsuitable for exhibition, Licensee shall give immediate notice to Licensor. Licensor may then, at its option and discretion either furnish a suitable replacement of the same Program or of a program of comparable quality as selected by Licensor. If the Program cannot be replaced, the Total License Fee shall be correspondingly reduced by the amount allocated to that Program by Licensor. Any such reduction shall be effected by reducing the payments due hereunder. Any Program or replacement furnished by Licensor shall be conclusively deemed suitable unless notice of defect is given to Licensor the earlier of the Start Date or thirty (30) days from delivery.
9. TAXES.
All amounts payable by Licensee to Licensor, pursuant to the terms of this Agreement shall be exclusive of any Indirect Transaction Taxes. “Indirect Transaction Taxes” means any relevant VAT, goods and services tax (“GST”), sales, use or consumption or similar tax, fee or impost imposed, levied or assessed by any governmental agency or otherwise payable, but does not include any related penalty, fine or interest thereon. For the avoidance of doubt, if any amounts payable by Licensee to Licensor are subject to Indirect Transaction Taxes (other than withholding tax) payable by Licensor, Licensor may charge such Indirect
Transaction Taxes to Licensee and Licensee shall promptly pay the amount thereof to Licensor. If any amounts payable by Licensee to Licensor are subject to Indirect Transaction Taxes (other than withholding tax) payable by Licensee under a reverse charge or withholding procedure, the amounts payable by Licensee to Licensor shall not be reduced by such Indirect Transaction Taxes.
In the event that a withholding tax is imposed, pursuant to local law, on payments by Licensee to Licensor, Licensee shall be entitled to deduct the withholding tax from payments to Licensor and pay such withholding tax to the appropriate tax authority. If payments made to Licensor are eligible for a reduced or zero rate of withholding tax pursuant to the law of the country of tax residence of Licensee or an income tax treaty between the country of tax residence of Licensor and the country of tax residence of Licensee, Licensee shall apply the lowest applicable withholding tax rate under the law of the country of tax residence of Licensee or such income tax treaty. For the avoidance of doubt, any entitlement to deduct withholding taxes under this clause shall be applicable only with respect to withholding taxes imposed on amounts payable directly from Licensee to Licensor pursuant to this Agreement, and only with respect to taxes arising under the local laws of Licensee or Licensor’s tax residence. No deduction shall be available with respect to withholding or related taxes incurred by an affiliate of Licensee or withholding or related taxes arising from sublicensing in a jurisdiction other than the country of Licensee’s tax residence. In the event (i) Licensee is permitted to assign or otherwise transfer this Agreement or the rights or obligations hereunder or (ii) Licensee relocates or otherwise restructures, any increased withholding taxes that arise due to such assignment, transfer, relocation or restructure shall be borne solely by Licensee. Upon request from Licensee, Licensor shall provide to Licensee any documentation or certificate required under the law of the country of tax residence of Licensee to allow Licensee to withhold at the lowest applicable withholding tax rate as soon as is practicable. Licensee shall provide documentation evidencing payment of the withholding tax (which includes an original receipt or other evidence of receipt of payment of the withholding tax) to Licensor. If Licensee does not provide such documentation evidencing payment of the withholding tax to Licensor in a timely manner, Licensee shall immediately refund to Licensor all amounts that were withheld. Licensee shall indemnify Licensor and its affiliates for any taxes, interest or penalties imposed by any tax authority that may become payable as a result of the failure by Licensee to pay any such withholding taxes in connection with payments made pursuant to this Agreement when due and required by applicable law.
10. ADVERTISING AND BILLING.
a. At Licensee's written request, Licensor shall make available to Licensee such advertising and promotional materials for the Program licensed hereunder that are available to Licensor at no additional cost, plus any other marketing materials which Licensor elects in its discretion to make available on a case-by-case basis. In all cases, such materials exclude "webisodes" and digital web assets. With respect to digital web assets, at Licensee's request, Licensor will offer to Licensee available digital web assets only for a Program licensed hereunder, subject to Licensee's agreement to Licensor's usage rules, as well as payment of the appropriate fee to be determined by Licensor on a case-by case basis. All expenses incurred in the shipping and handling of such advertising and promotional materials shall be borne by Licensee. Licensee may use any advertising and promotional material supplied by Licensor to advertise or publicize the Program licensed hereunder, but shall not make, authorize or permit any form of announcement or publicity regarding the exhibition of any Program licensed hereunder in the Authorized Languages in the Licensed Territories except during its License Period. Licensee agrees that no advertising or promotional material shall be created, developed and/or extracted or excerpted by Licensee from any Program licensed hereunder to advertise and promote a program not licensed hereunder, nor shall any portion of a Program licensed hereunder be used as a trailer to promote another program or a channel in general. Licensee shall not change any of the credits contained in the advertising and promotional materials, and Licensee shall comply with all of Licensor’s contractual obligations and instructions and screen and advertising credits and restrictions as notified by Licensor. In addition, Licensee may promote the exhibition of a Program licensed hereunder during Licensee's License Period in accordance with Licensor’s “Guidelines for the Promotion of NBCUniversal Motion Pictures and Television Product” as delivered or otherwise made available by Licensor (e.g., via PUMA or PASSPORT). Licensee shall comply with all further restrictions, which may be presented by Licensor from time to time with respect to the promotion of the Program on the Internet.
b. Licensee covenants and agrees that (i) Licensee shall not use any advertising or promotional materials in such a manner that would constitute an express, implied, direct or indirect endorsement of any product, service or sponsor, (ii) Licensee shall not use the name or likeness of any person appearing in or associated with the Program licensed hereunder except to the extent such advertising complies with this Agreement and all of Licensor’s prior instructions, (iii) Licensee shall indemnify and hold harmless the Licensor Indemnitees from and against all losses incurred by Licensor Indemnitees by reason of any
breach by Licensee of the provisions of this Paragraph, (iv) all promotion and advertising conducted by or on behalf of Licensee in connection with this Agreement will at all times and in all respects comply with and will be conducted in accordance with all applicable laws, rules and regulations and (v) if requested, Licensee shall return at its expense all such advertising and promotional materials (which at all times remain the property of Licensor). Licensor shall have the right to pre-approve any advertisements or promotional materials created by Licensee in connection with the Program licensed hereunder if such advertisement or promotion includes any material other than that provided by Licensor or if such materials provided by Licensor have been altered in any way. Any promotional materials created or modified by Licensee in accordance with this Agreement shall be subject to Licensee’s compliance with all third-party contractual obligations and the provisions of applicable collective bargaining and guild agreements and to Licensee clearing all third-party rights.
11. MUSIC.
Licensor represents that, to the best of its knowledge, the non-dramatic performing rights in the music contained in the Program licensed hereunder are: (i) controlled by or licensed to Licensor to the extent necessary to permit Licensee's exhibition of the Program licensed hereunder, (ii) in the public domain or (iii) controlled by a performing rights society having jurisdiction in the Licensed Territories. In addition to its representations and warranties set forth herein, Licensee represents, warrants and agrees that it has secured and will maintain (at its sole expense) all performing rights licenses (e.g., ASCAP, BMI or SESAC) necessary to publicly perform the music in each Program licensed hereunder, and Licensee will hold Licensor harmless from and against any and all claims arising out of Licensee's failure to do so.
12. COMMERCIALS.
Licensee may, at its own expense, insert commercials at any place or places in each Program licensed hereunder as determined by Licensee. Such commercials shall be made and used by Licensee without any liability to, or obligation upon Licensor and shall be inserted in such manner as will not adversely affect or detract from the artistic or pictorial quality of the Program licensed hereunder, or damage or injure the videotape thereof. Subject to the terms of this Agreement, any commercial advertising will not reflect unfavorably on the Program or Licensor (or any of its affiliated entities), and will not refer to or promote any gambling or any “X-rated,” explicit sexual content or other adult-oriented content. Under no circumstances shall Licensee insert any product placement within the Program itself.
13. DEFAULTS.
a. The following shall be events of default (“Event of Default”) hereunder:
(i) Licensee breaches any of the payment terms set forth in this Agreement and said breach is not cured within five (5) days after written notice thereof by Licensor.
(ii) Licensee breaches any other provision of this Agreement (including, without limitation, any of its representations, warranties, covenants or agreements), which breach is not remedied within twenty
(20) days after written notice thereof by Xxxxxxxx.
(iii) An order for relief is entered with respect to Licensee and is not discharged or vacated within thirty
(30) days, or Licensee commences a voluntary case under Title 11 of the United States Bankruptcy Code as now and hereafter in effect, or any successor or similar statute, or any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or Licensee consents to the entry of an order for relief in an involuntary case, or to the conversion of a voluntary case to an involuntary case, under any such law, or consents to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; Licensee makes any assignment for the benefit of creditors; Licensee is generally unable, or fails or admits in writing of its general inability or failure, to pay its debts as such debts become due; or the Board of Directors or other governing body of Licensee adopts a resolution or otherwise approves authorization to act upon any of the foregoing actions.
(iv) Any order, judgment or decree is entered against Licensee decreeing the dissolution, winding up or split-up of Licensee and such order remains undischarged or unstayed for a period in excess of thirty (30) days.
(v) Licensee telecasts or authorizes any other entity to telecast any Program or materials related
thereto or other programs controlled by Licensor and/or its affiliates that is not authorized in writing by Licensor.
(vi) If Licensor so elects, any breach of this Agreement shall also be deemed to be a breach of any other agreements between Licensor and Licensee, and shall entitle Licensor to exercise any or all of the rights and remedies set forth herein and/or in said other agreements.
b. Upon the occurrence of an Event of Default, Licensor shall have the following rights, any or all of which may be exercised in its sole discretion:
(i) In the event of one or more unauthorized exhibitions, Licensee shall immediately pay to Licensor for each such unauthorized exhibition a license fee equal to the total per Program License Fee less the Credit/Refund amount identified for the applicable Program in Exhibit B only in the row which is for one (1) Run/Exhibition Day/Exhibition Week (except that in the case of a Program where only one (1) Run/Exhibition Day/Exhibition Week is authorized, the fee for each such unauthorized exhibition shall be equal to the total per Program License Fee), PROVIDED HOWEVER, that such fee shall be promptly paid by Licensee to Licensor without prejudice to any other rights or remedies of Licensor which it may have under this Agreement, at law and/or in equity to seek additional damages, including consequential damages, from each such unauthorized exhibition (each a “Unauthorized Exhibition Fee”). For purposes hereof, an “exhibition” means an individual transmission of a Program, in whole or in part.
(ii) Immediately upon the occurrence of an Event of Default, pursuant to subparagraph (a) hereinabove, Licensor may, at its option, terminate this Agreement effective immediately upon notice of termination by Licensor. Termination of Licensee’s rights shall not affect Licensor’s right to full payment of the Total License Fee payable to Licensor hereunder nor Licensor’s right to full payment for all damages caused by Licensee’s default or any other rights or remedies of Licensor pursuant to this sub-paragraph (b) or otherwise. Upon termination of this Agreement by Licensor, in addition to any other rights and remedies of Licensor under this Agreement or available in law or equity, all of Licensee’s rights hereunder automatically revert to Licensor, and Licensee shall immediately return at Licensor’s discretion, without limitation, all materials related to the Program licensed hereunder including Licensor’s videotapes, Licensee’s Copy (or a Certificate of Erasure in accordance with the Paragraph entitled DELIVERY AND RETURN OF MATERIALS) and all other materials theretofore furnished to or created by Licensee with respect to the Program licensed hereunder.
(iii) Immediately upon an Event of Default, the balance of the Total License Fee and other amounts payable to Licensor hereunder (including, without limitation, interest on any overdue amount as set forth in the Paragraph entitled PAYMENT), shall immediately become due and payable, regardless of the due date and without any prejudice to any other rights and remedies available to Licensor at law or in equity.
(iv) Licensor may during the existence of any unremedied breach of this Agreement, suspend delivery to or exhibition by Licensee, or both, of the Program licensed hereunder.
(v) Licensee acknowledges that the terms hereof and the industry custom of licensing programming substantially in advance of scheduled exhibition, have the effect of rendering the Program licensed hereunder unmarketable in the Licensed Territories during any period encompassed by this Agreement, and therefore, no method exists for accurate measurement of damages upon the happening of an Event of Default hereunder. Therefore, in addition to all other rights and remedies available to Licensor, Licensor shall be entitled, upon the occurrence of an Event of Default, to recover from Licensee as liquidated damages the full, unpaid net License Fee for all exhibitions authorized hereunder, whether or not such exhibitions actually occur.
(vi) In addition to the above rights and remedies available under this Agreement in law or in equity, all of which are reserved by Licensor, Licensor shall be entitled to recover from Licensee Licensor’s reasonable attorney’s fees plus costs and expenses including those costs incurred by Licensor for retaining an attorney at any time to review, advise and/or enforce the provisions hereof.
(vii) The rights and remedies of Licensor set forth in this sub-paragraph (b) are cumulative and are in addition, and without prejudice, to any and all rights and remedies available to Licensor at law or in equity.
c. Licensee shall notify Licensor in writing within twenty-four (24) hours of an Event of Default in sub- paragraph (a) (iii) or (iv) or (v) hereinabove.
d. Effect of Termination: Upon termination of this Agreement, Licensor shall be relieved of its obligations hereunder not yet accrued as of the date of termination. Licensee shall remain fully obligated to fulfil its obligations that accrued prior to such date of termination including, but not limited to, the payment of all License Fees. In addition to its other rights and remedies, Licensor shall have the right to demand as payment for certain damages all License Fees and other monies due or to become due hereunder but for such termination immediately due and payable, and Licensee shall immediately pay such amount. Immediately upon termination, all rights licensed hereunder shall immediately revert to Licensor, and Licensee shall not have any further rights whatsoever (including, without limitation, the right to exhibit) with respect to the Program licensed hereunder or any other materials relating or referring to the Program licensed hereunder. In connection therewith, all such materials shall be promptly returned to Licensor.
e. Licensor Breach or Default; No Injunctive Relief: If Licensor is in breach or is in default of any provision hereunder (including any representation or warranty, covenant or other obligation), and if such breach or default is not cured, then Licensee's rights will be limited to an action at law for damages as a result thereof (provided that Licensee shall not seek punitive damages), and in no event will Licensee be entitled to an injunction or other equitable relief of any kind including, without limitation, requiring or prohibiting distribution or delivery of any Program licensed hereunder. Any breach or default by Licensor is limited to the particular Program licensed hereunder to which such breach or default applies.
14. EXCLUSIVITY/HOLDBACK.
Subject to the terms of this Agreement and only so long as Licensee is not in breach of this Agreement, Licensor agrees not to grant to a third party the linear free television rights authorized by Licensor hereunder to transmit the Program licensed hereunder in its entirety in the Authorized Languages in the Licensed Territories during Licensee’s License Period. For clarity, unauthorized reception, transmission or incidental broadcast or satellite overspill reception shall not constitute a breach by Licensor of this Agreement.
15. RESERVATION OF RIGHTS.
Licensor reserves all rights (whether now known or unknown) in and to each Program licensed hereunder and its contents and the parties agree that Licensor shall have the right to exercise all or any of its reserved rights without limitation or restriction. Licensor's reserved rights shall include, without limitation, the right to change the title of any licensed Program, and Licensor agrees that if such title is changed Licensee shall be given reasonable notice. Licensee shall then immediately substitute in all advertising the changed title and shall immediately substitute footage (to be furnished by Licensor) containing the new title and will not exhibit that Program, except with the new title.
Except as expressly stated in the EXCLUSIVITY/HOLDBACK paragraph hereinabove, all rights are reserved to Licensor without any restriction and such reserved rights include, without limitation, home video (including electronic sell-through), basic cable television, pay television, PPV, VOD, near-video-on-demand, SOD (and any other on-demand system, known or unknown, whether fee or non-fee based, whether subscription or non-subscription based), and services provided via (A)DSL, wireless, mobile, downloading, storage and/or Internet and/or any on-line or other systems and technologies (whether such interactive or otherwise, now known or unknown).
Any royalties, fees, video levies or any other payments to a general fund intended for distribution to a claimant which may be paid to or received by Licensee by virtue of any statute, governmental regulation or by operation of law or in any other manner as a result of the amplification, retransmission, relaying by or from any facility, video purchase or rental of each licensed Program, shall belong to Licensor and if received by Licensee shall be held by Licensee as agent and/or trustee for Licensor and shall be promptly paid to Licensor.
16. LENGTH OF PROGRAM.
The length of a Program as used throughout this Agreement shall mean its full running time, including commercials, lead-ins and lead-outs as originally broadcast on television.
17. INDEMNITIES.
a. Licensor shall indemnify and hold harmless Licensee and its officers, directors, agents, affiliates and employees (the “Licensee Indemnitees”), from and against any and all liabilities, actions, claims, losses, damages and expenses (including reasonable outside attorneys’ fees and expenses) (collectively, “Losses”) caused by or arising in connection with (i) Licensor’s material breach of any representation, warranty, covenant or agreement made by Licensor in this Agreement or (ii) subject to Licensee fully complying with this Agreement, any agreement with any other person or entity, or any right of privacy, defamation or publicity, copyright or trademark (limited as to each to an action that may be brought under the laws of the United States) of any other person or entity, which in each case is inconsistent with, and solely to the extent that any of the foregoing interferes with, the rights expressly granted to Licensee hereunder. Notwithstanding the foregoing, Licensor expressly excludes any indemnification of any kind in regard to music contained in the Program licensed hereunder, except for indemnification with respect to Licensor's breach of the representation in the first sentence of the Paragraph entitled MUSIC hereinabove.
b. Licensee shall indemnify and hold harmless Licensor and its affiliates and its and their officers, directors, agents, affiliates, licensors and employees (the “Licensor Indemnitees”), from and against any and all Losses caused by or arising in connection with (i) Licensee’s breach (or alleged breach) of any representation, warranty, covenant and/or agreement made by Licensee in this Agreement, (ii) Licensee’s breach of any of its payment obligations, (iii) the exhibition of any Program by Licensee, (iv) advertising, marketing and/or promotion related to Licensor, its affiliates or any Program conducted, developed, used, published, distributed, disseminated or authorized by or on behalf of Licensee or (v) any other material supplied or permitted by Licensee to be used including, without limitation, any material added, deleted or modified by any person or entity other than Licensor after delivery of the Program to Licensee.
c. The indemnified party shall promptly notify the indemnifying party of a matter giving rise to an indemnification obligation hereunder, and the indemnifying party may at its option assume the defense of such claim, in which case the indemnified party shall reasonably cooperate in the defense thereof. No settlement or compromise of the matter or admission of liability may be made by the indemnified party without the indemnifying party’s prior written consent.
18. WITHDRAWAL OF PROGRAM.
Licensor may, in its sole discretion, withdraw any Program licensed hereunder if Licensor determines that (i) the telecasting thereof would or might (a) infringe upon the rights of others; (b) violate any law, court order, government regulation or other ruling of any governmental agency; (c) interfere with the actual or contemplated use of the Program licensed hereunder (including, but not limited to, any theatrical (re)release or remake of, spin-off, or any prequel or sequel to such Program) or the material or rights contained therein, for any purpose in the Licensed Territories other than as specified in the foregoing Paragraph entitled EXCLUSIVITY/HOLDBACK; or (d) subject Licensor to any liability; or (ii) the preprint material, negatives or otherwise, for the Program is unsuitable for the making of a videotape copy.
In addition to its other rights to withhold and withdraw a Program, Licensor, at its discretion, may temporarily withhold delivery of Videotapes of any Program licensed to Licensee, or may temporarily suspend Licensee's telecasting of Program previously delivered, for a period or periods as specified by Licensor, provided such withholdings or suspensions as to any particular Program shall not total in the aggregate more than twelve (12) months. In any such case, the License Period for such Program shall be extended by a period equal to that by which the aggregate of the periods of suspension or withholding under this paragraph for such Program exceeds ninety (90) days. Licensor agrees to notify Licensee by mail or wire of such withholding or suspension and the probable duration, if known.
19. ADJUSTMENT IN PRICE UPON WITHDRAWAL.
Licensee shall not be entitled to a price adjustment of any Program licensed hereunder withdrawn by Licensor hereunder if (i) prior to the effective date of withdrawal or after the Program may have been restored to Licensee, Licensee has telecast or has been deemed to have telecast the Program for the number of times designated in the Schedule, or has had sufficient time in which to telecast the Program for as many times as Licensee would have telecast the Program had the Program not been withdrawn; (ii) Licensor furnishes a mutually satisfactory substitute program; or (iii) Licensor and Licensee are unable to agree on a satisfactory substitute program and Licensor furnishes a program of comparable quality to the
withdrawn Program. Unless Licensee elects to the contrary within ten (10) days following the withdrawal of a Program, Licensee will be deemed to have elected to accept the substitute program, if provided.
If the foregoing is not applicable, Licensee shall be given a refund or credit, as Licensor may elect, as follows:
(i) If, before withdrawal, any Program licensed hereunder has not been, or has not been deemed to be, telecast by Licensee, the entire License Fee for such Program shall be refunded or credited to Licensee.
(ii) If, before withdrawal, any Program licensed hereunder has been, or has been deemed to be, telecast one or more times, Licensee shall be entitled to a credit or refund in an amount equal to the percentage of the original per Program License Fee set forth in Exhibit B attached hereto, taking into account the number of times such Program has actually been telecast or deemed to have been telecast prior to such withdrawal and the greater value attributed to such first telecast. Exhibit B is omitted if only one run is licensed.
A Program shall be deemed to have been telecast, for refund or credit purposes, one time for each twelve
(12) month period commencing on the Start Date, during which Licensee had, but did not exercise, the right to telecast such Program.
20. COPY PROTECTION; TECHNICAL SPECIFICATIONS.
Licensee agrees to comply with the copy protection and technical specifications set forth in the Technical Schedule.
21. ASSIGNMENT/CHANGE IN OWNERSHIP.
This Agreement may not be assigned, transferred, conveyed, pledged, hypothecated or sublicensed (in whole or in part) by Licensee (voluntarily or by operation of law), without Licensor's prior written consent. Any such assignment, transfer, conveyance, pledge, hypothecation or sublicense of this Agreement by Licensee, or any change in ownership or control of Licensee, without Licensor’s prior written consent shall constitute an Event of Default hereunder, and Licensor shall be entitled to exercise all of its rights and remedies including, without limitation, the right to terminate this Agreement as set forth herein. In addition, Licensee agrees that in the case of any permitted assignment both Licensee and its parent shall guarantee the payment of all sums due to Licensor hereunder. Licensor may transfer, assign, pledge, convey or hypothecate this Agreement in whole or in part, without Licensee's consent.
22. CONFIDENTIALITY.
Licensor and Licensee each agree that it and its employees will maintain in confidence the terms and provisions of this Agreement including, without limitation, the number of, and amount of License Fees for the Program(s) licensed hereunder and all information derived from the other party in performance of its obligations hereunder, and that they have not and will not reveal the same to any Persons other than a Person employed by the other party who has agreed to be bound by this confidentiality agreement, except:
(i) to the extent necessary to comply with applicable law, the rules of any stock exchange on which the shares of that party or its parent company may be listed, or the valid order of a court of competent jurisdiction or an arbitration tribunal, in which event the disclosing party shall so notify the other party as promptly as practicable (and, if possible, prior to making any disclosure) and shall seek confidential treatment of such information;
(ii) as part of its normal reporting or review procedure to its parent company, its auditors, its participants and its attorneys, if such parent company, auditors, participants and attorneys agree to be bound by the provisions of this sub-paragraph; or
(iii) in order to enforce any of its rights pursuant to this Agreement.
No party shall issue a press release or make any other public announcement or disclosure of any kind with respect to this Agreement, or the transactions contemplated hereby, without the prior written consent of the other party.
23. EXHIBITION REQUIREMENTS/RESTRICTIONS.
The Program will be exhibited as contemplated in this Agreement in a high quality, “first class” manner, using state-of-the-art equipment (or other high quality equipment that is reasonably satisfactory to Licensor). With the exception of the Licensed Channel’s identification logo, Licensee will not include or authorize any text, banner or other advertisements or promotions on the same screen as, in connection with, or at all adjacent to the Program exhibited, or through Licensee’s advertising or promotional activities make any implied association with Licensor (or any of its affiliated entities) without the prior written approval of Licensor.
24. NOTICES.
All notices (including other communications required or permitted) under this Agreement shall be in writing and shall be delivered (i) by email and (ii) (A) in person, (B) by registered, express or certified mail, postage prepaid, return receipt requested, (C) by a generally recognized courier or messenger service that provides written acknowledgment of receipt by the addressee, or (D) by facsimile with delivery confirmation. Notices shall be deemed delivered upon the earliest to occur of (v) the date such notice is actually received by a party, (w) the date of e-mail delivery, (x) five (5) business days after mailing registered, express or certified mail, (y) two (2) business days after being sent by a generally recognized courier or messenger service, and
(z) the date of facsimile transmission. Notices shall be delivered at the addresses set forth below:
:
:
a
:
,
The addresses to which notices or demands are to be given may be changed from time to time by notice served as provided above. Delivery of notice to the copied parties above is not notice to Licensor or Licensee, as the case may be.
25. MISCELLANEOUS.
Subject to the terms of this Agreement, Licensor has absolute and final control at all times and in all respects over the production, transmission, broadcast, telecast, distribution and exhibition of the Program licensed hereunder. Without limiting any of its rights or remedies, Licensor will, upon request, have meaningful consultation rights with respect to Licensee’s plans for the distribution, marketing, promotion and exploitation of the Program licensed hereunder, including prior written notice with an opportunity to review, consult, and comment. Licensee will itself comply and will ensure that all of its affiliated entities and any authorized retransmission systems authorized by Licensor hereunder comply, with this Agreement and all applicable laws, rules and regulations of the Licensed Territories in regard to telecasting the Program licensed hereunder.
Each party represents, warrants and agrees that it has the right and the authority to enter into this Agreement and render the performances described in this Agreement.
In connection with any Program licensed hereunder that contain news material, Licensee acknowledges and agrees that circumstances may exist in which Licensor will, in its sole discretion, refuse to provide Licensee (or any other entity, including without limitation a court or other tribunal) with certain information pertaining to
Licensor’s news gathering processes—for instance, the identity of confidential sources, outtakes and other information regarded by Licensor as confidential. Licensee agrees that this refusal by Licensor will not be deemed to be a breach of this Agreement by Licensor and will not limit the representation and warranties or indemnification provided by Licensee under this Agreement.
This Agreement, irrespective of the place of execution or performance, shall be construed and enforced in accordance with the laws of the State of California USA, applicable to contracts to be executed and to be wholly performed therein, regardless of any conflicts by law. Place of venue for any dispute shall be the courts of Los Angeles, California, USA. By this Agreement, Licensee consents to the jurisdiction of this court and venue and to service of process by mail. The parties hereby irrevocably waive their respective rights to trial by jury of any cause of action claim, counterclaim or cross-complaint in any action or other proceeding brought by any party against any other party or parties with respect to any matter arising out of, or in any way connected with, or related to this Agreement or any portion thereof, whether based upon contractual, statutory, tortious or other theories of liability. With respect to such dispute, both parties shall choose domicile at, 000 Xxxxxxxxx Xxxx Xxxxx, Xxxxxxxxx Xxxx, XX 00000, XXX.
This Agreement (including all Riders, Schedules and Exhibits which are incorporated herein by reference) is the entire and complete Agreement of the parties with respect to the subject matter of this license. All prior understandings, oral or written, if any, for the telecasting hereunder, have been merged herein; or if not merged hereby canceled, and no representations have been made by Licensor except those expressly set forth herein. Any amendment or modification of this Agreement must be in writing and signed by an authorized representative of Licensee (if required by Licensor) and on behalf of Licensor by its authorized representative. Waiver of any breach shall not be construed as a waiver of any other breach by such party. Paragraph titles herein are merely for identification and shall be of no effect in the application or construction of the provisions hereof. If any provision of this Agreement is found to be void or unenforceable, the remaining provisions will continue in full force and effect, and this Agreement will be construed and enforced as if such provision were not contained in this Agreement. This Agreement will not create any relationship of partnership, joint venture, agency, fiduciary, or employment between the parties and no such relationship exists between the parties with respect to the Program and neither party will so hold itself out by advertising or otherwise, nor will either of the parties be liable or bound by any representation, act or omission whatever of the other party. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together constitute one and the same instrument. Documents executed by authorized signatories utilizing electronic signatures shall be as legally binding for all purposes as documents executed with original handwritten signatures, and no certification authority or other third-party verification is necessary to validate their electronic signature. In addition, copies of duly executed documents (e.g., PDF copies received via email, facsimile copies, etc.) shall be as legally binding for all purposes as the originals. The parties hereto acknowledge and agree that in any legal proceedings between them respecting or in any way relating to this Agreement, each waives the right to raise any defense based on its execution by electronic means or the unavailability of the original executed document.
26. COMPLIANCE WITH LAW; EXPORT CONTROL REGULATIONS.
a. Compliance with Law. Licensee shall exercise its rights and perform its obligations hereunder in compliance with applicable laws, rules, and regulations, including, without limitation, obtaining and maintaining all necessary authorizations, approvals, and consents to enter into this Agreement, exercise such rights, and perform such obligations.
b. Export Control/Sanctions.
(i) Licensee represents, warrants, and agrees that neither Licensee nor any of its subsidiaries, directors, officers, or controllers is the subject of any embargoes, sanctions, trade controls, or investment restrictions imposed, administered, or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the U.S. Commerce Department, the U.S. State Department, Executive Orders by the President of the United States, the United Nations Security Council, the United Kingdom, the European Union, or any member thereof (collectively, “Sanctions”) and that Licensee shall exercise its rights and perform its obligations hereunder in compliance with Sanctions and export control laws administered by the U.S. Department of Commerce Bureau of Industry and Security, the U.S. State Department Directorate of Defense Trade Controls, and with all applicable export control laws (collectively, “Export Controls”). The failure of the foregoing representation, warranty, and agreement to be and remain accurate throughout the Term shall be deemed a material breach of this Agreement, and Licensor shall be entitled, at any time, to immediately suspend Licensor’s rights and/or obligations and Licensee’s
rights and/or obligations hereunder and to terminate this Agreement, at any time, upon five (5) days written notice. Licensee shall notify Licensor in writing no later than one (1) business day following the date on which any of Licensee or any of Licensee’s subsidiaries, directors, officers, or controllers becomes the subject of Sanctions.
(ii) Licensee agrees that nothing in this Agreement requires Licensor to (A) take any action that would be contrary to Sanctions or Export Controls, or (B) refrain from taking any action required by Sanctions or Export Controls, in each case as Licensor determines in its sole discretion. In the event that Licensor determines, at any time, in its sole discretion that taking any action under this Agreement would be contrary to, or not taking any action under this Agreement would be required by, any Sanctions or Export Controls, such actions or inactions shall not constitute a breach of this Agreement by Licensor, and Licensor shall not be liable to Licensee or any third party for any damages arising as a result of such actions or inactions.
(iii) If at any time during the Term hereof a particular region, country, or territory within the Licensed Territories is the subject of Sanctions or Export Controls, then, effective as of such time and continuing for so long as such laws or regulations are in effect, the license granted hereunder shall, upon notice from Licensor, terminate solely as to such region, country, or territory and such region, country, or territory shall be excluded from the Licensed Territories. Licensor and Licensee agree that at such time as such laws or regulations are no longer in effect, such region, country, or territory shall once again be included in the Licensed Territories, upon notice from Licensor.
RIDER
TO TELEVISION LICENSE AGREEMENT BETWEEN UNIVERSAL STUDIOS LIMITED AND ROZHLAS A TELEVIZIA SLOVENSKA
1. PUBLICATION OF THE AGREEMENT.
Notwithstanding anything to the contrary in the Paragraph entitled CONFIDENTIALITY, it is understood that Licensee has a statutory obligation to publish this Agreement on a public website.
Licensor agrees to such publication of the Agreement provided it is in the form as included in Xxxxx XX attached hereto.
2. RUNS.
With respect to the Licensed Channels as specified in the Schedule of this Agreement and the number of Runs as specified in the Schedule or Exhibit A, it is understood that Licensee may broadcast each Run granted on one of the Licensed Channels. Each Run taken on one of the Licensed Channels shall count as one (1) Run.
3. DUBBING/SUBTITLING.
With respect to the Authorized Languages as specified in the Schedule of this Agreement, Licensee shall have the right to either dub and/or electronically subtitle the Program licensed hereunder under the following terms and conditions. Licensee shall advise Licensor within a reasonable time prior to the Start Date the method chosen so as to enable Licensor to deliver the material required.
a. The following shall apply for DUBBING:
(i) Licensor shall deliver to Licensee the following:
(1) One (1) Videotape with music and effects track on Channel two (2), if available and a neutral title background, if available;
(2) One (1) Original Version Language script; and
(3) One (1) music cue sheet
(ii) Licensor shall, at Licensee's expense, ship the above-mentioned dubbing material to Licensee at Licensee's address as specified in this Agreement or elsewhere as Licensee may reasonably designate. Licensee shall pay Licensor upon invoicing (unless the material is supplied on loan) the cost of the material specified above with the exception of items (2) and (3).
(iii) Licensee agrees that its agreement(s) with the company dubbing the Program licensed hereunder (the "Dubber") if any shall contain the Dubber's written acknowledgement and agreement to all of the terms and conditions contained herein including, but not limited to, the sole and exclusive ownership by Licensor of the dubbed versions language tracks and translations in the Authorized Language and that neither the Dubber, Licensee nor any other party shall have any right, title or interest with thereto.
b. The following shall apply for SUBTITLING:
(i) Licensor shall deliver to Licensee the following:
(1) One (1) Videotape; and
(2) One (1) Original Version Language script, if available.
(ii) Licensee shall use an electronic process to subtitle the tapes delivered hereunder into the
Authorized Language. Licensee will be charged with cost price of each tape damaged beyond normal wear and tear which shall not transfer title to Licensee or to anyone else.
c. The existing copyright for each Program shall not be limited or abridged in any manner and Licensor shall be entitled to obtain copyright protection for the Authorized Language version of each such Program (regardless of who created it).
d. The cost of dubbing and/or subtitling in the Authorized Language versions and/or laboratory work connected therewith including completion of missing music and effects shall be borne by Licensee. All dubbed and/or subtitled versions (regardless of who created them) shall be the sole property of Licensor and Licensor shall have exclusive and irrevocable rights therein and thereto including, without limitation, copyright.
e. If Licensor accesses such dubbed and/or subtitled versions created by Licensee, then Licensor shall on a one-time basis reimburse Licensee fifty percent (50%) of the actual out-of-pocket dubbing/subtitling costs reasonably incurred by Licensee for such materials. Licensee shall provide Licensor with a detailed invoice regarding these dubbed and/or subtitled versions, including, without limitation, a list of the dubbing and/or subtitling costs and the rights acquired and cleared.
f. Immediately upon completion of the License Period hereunder or after the final telecast, whichever is earlier, all telecasting material shall be returned prepaid to Licensor, ordinary wear and tear from proper use excepted to an address designated by Licensor.
4. SUBSTITUTE TITLE.
Subject to Licensor’s prior written approval, Licensee shall have the right to exhibit a Program licensed hereunder under a title other than the one specified in this Agreement (“Substitute Title”) provided:
(i) Licensee shall advise Licensor of the Substitute Title prior to the Start Date of the License Period of the Program;
(ii) Licensee agrees to indemnify Licensor against liability, loss, damages or expenses arising out of or caused by Licensee’s designation of the Substitute Title;
(iii) Ownership of all rights in and to the Substitute Title shall belong exclusively to Licensor which may use the Substitute Title for any purposes whatsoever; and
(iv) Licensee shall use the Substitute Title solely in connection with the exhibition of the Program in accordance with this Agreement and shall clear the rights for such use.
5. PRICE (RE)ALLOCATION.
Licensor shall have the right, to be exercised in its sole discretion, to (re)allocate the License Fees for each Program licensed hereunder and Licensee agrees to acknowledge and accept such (re)allocations. For clarity, the Total License Fee shall remain unchanged.
Contract #: 5048809 -2 / 160046 -2
TECHNICAL SCHEDULE
Copy Protection and Technical Specifications
1. GENERAL REQUIREMENTS.
a. Technical Facilities; Copy Protection. The Programs shall reside solely on servers or other storage devices owned or controlled by Licensee or an Authorized Network or its subcontractors and shall be accessible solely to authorized personnel. The facilities of Licensee and of each Authorized Network or its subcontractors shall be of first-class technical quality, and Licensee shall, and shall cause each Authorized Network to, employ such full security systems and encryption and encoding procedures as are appropriate in accordance with industry standards and the instructions of Licensor to prevent unauthorized Persons from receiving, and to prevent all Persons from duplicating or retransmitting, all or any part of any Program. Without limiting the foregoing, Licensee and each Authorized Network shall employ security systems and procedures to protect the Programs from damage, theft, and loss, including the following:
(i) All files containing Programs will be stored by Licensee and each Authorized Network on password-protected, closed-network servers in locked facilities.
(ii) Physical access to any facility receiving and processing Program files in unprotected format will be controlled by electronic badge access and limited to authorized personnel with a legitimate business purpose for access.
(iii) Physical access to servers that store Program files will be limited and controlled by a badging system, in which only authorized personnel with a legitimate business purpose are granted access to locked areas containing servers that store Program files.
(iv) Servers that store Program files will be protected from unauthorized Internet access by industry standard protection systems. All systems will be updated as needed to maintain a high level of protection.
(v) Licensee and each Authorized Network will maintain a vulnerability management team that conducts risk assessments and reviews applicable security patches and upgrades.
(vi) All facilities that process and store Program files will be regularly reviewed by internal teams for compliance with Licensee’s security system guidelines.
(vii) The security policies and procedures in place for the storage and security of Program files will be continuously enforced and maintained.
(viii) Licensee will notify Licensor of material changes to any security system policies and procedures that would substantially diminish the overall security of the Program files.
(ix) The Program files will be securely destroyed pursuant to requirements of the Agreement after the end of the Term, including, without limitation, all electronic and physical copies thereof.
(x) Licensee and each Authorized Network shall not make, authorize, or permit any other Person to make, any duplicate copies of the Programs without Licensor’s prior written consent, except (A) as otherwise permitted in this Technical Schedule, (B) for duplications made in connection with the ingestion facility’s encoding process, and (C) necessary duplications that the encryption provider or Licensee and each Authorized Network makes in order to host and serve the Programs.
b. Copy Control Information. (i) Licensor may encode or embed the materials with any technology utilized by Licensor or in the home video or television industry generally that would prevent copying or duplication by recipients of the Programs and related information pertaining to copy protection and control that is intended to be ultimately readable by and/or affect consumer electronics equipment. (ii)
Licensee shall not, and shall not permit any Authorized Network to, limit carriage of, strip out or obscure data fields or other data packets containing such embedded technology or other encoding or watermarks as may be embedded in the Programs as delivered to Licensee, nor shall Licensee or any Authorized Network embed any additional data files (or other data packets) containing copy control information (“CCI”) in the Programs unless approved in writing by Licensor.
c. High Definition. Licensee may not transmit or cause or permit the transmission or other distribution of any Program and any related materials via any analog output at a resolution greater than 720x576.
2. COPY PROTECTION AND TECHNICAL SPECIFICATIONS FOR TRANSMISSION VIA AUTHORIZED NETWORKS.
a. Authorized Networks. At Licensor’s request, Licensee shall provide to Licensor the name of each Authorized Network, the conditional access system used in connection with such Authorized Network, and any other information reasonably requested by Licensor about such Authorized Network. If Licensee at any time wishes to add a Cable Network, DTH/DBS Network or Closed Data Network as an Authorized Network, then Licensee shall give Licensor written notice of the proposed Cable Network, DTH/DBS Network or Closed Data Network, and Licensor may, in its sole discretion, accept or reject the proposed Cable Network, DTH/DBS Network or Closed Data Network as part of the Authorized Networks for purposes of this Agreement. Notwithstanding anything to the contrary herein, in the event Licensor determines in its sole discretion that an Authorized Network’s content protection measures are inadequate or inappropriate or may become inadequate or inappropriate, Licensor shall have the right to remove such Cable Network, DTH/DBS Network or Closed Data Network as an Authorized Network and such Cable Network, DTH/DBS Network or Closed Data Network shall no longer constitute an Authorized Network hereunder. Notwithstanding anything to the contrary herein, in the event any Authorized Network becomes subject to Sanctions or violates any Export Controls, Licensor shall have the right, in its sole discretion, to remove such Cable Network, DTH/DBS Network, or Closed Data Network as an Authorized Network at any time, and such Cable Network, DTH/DBS Network, or Closed Data Network shall no longer constitute an Authorized Network hereunder.
b. Conditional Access Systems. Audiovisual programming transmitted via an Authorized Network shall be via a content stream which is secured and protected using the recognized conditional access systems approved in writing by Licensor. Licensor hereby approves the following conditional access systems: Conax, Irdeto, Latens, Microsoft, Nagra, Synamedia, SecureMedia, Verimatrix, Viaaccess, and Widevine (each, an “Approved CAS”). Licensor shall have the right to approve any other conditional access employed by or on behalf of Licensee. At Licensee’s request, Xxxxxxxx agrees to review other conditional access systems employed by or on behalf of Licensee; provided that Licensee has completed Licensor’s technical questionnaire. Unless and until such approval in writing is given by Licensor in its sole discretion, Licensor shall have the right to withhold any and all Programs and/or suspend Licensee’s rights hereunder. If any Authorized Network does not employ an Approved CAS or another conditional access system approved in writing by Licensor, Licensee shall have no rights whatsoever to transmit any Programs via such Authorized Network and transmission in violation of this Agreement shall be a material breach by Licensee. Licensee shall give Licensor written notice if an Authorized Network changes the Approved CAS it employs.
c. Input/Output Requirements for Set-Top Boxes.
(i) Digital Home Network Connections and Video Input Controls. Any digital input capable of receiving non-service video signals, whether analog or digital, for transmission to a television monitor or other display device must respect the instructions embedded in CCI or other embedded technology implemented by Licensor. Licensee shall work in good faith with Licensor, other content providers and technology companies to support the development and deployment of (A) industry standard copy protection and copyrighted content filtering technology in home networking devices and applications that facilitate viewing of unknown PC or NAS (home Network Attached Storage) or other portable storage-based video content on the television, and (B) industry standard watermarking technology for the identification of copyrighted content and associated efforts to detect and impede the illegal distribution of copyrighted content on peer-to-peer file sharing systems, such as the use of filtering technology. Licensee and Licensor further agree to hold periodic joint meetings to discuss digital piracy and potential technology solutions.
(ii) Digital Outputs. Licensee shall not transmit or cause or permit the transmission or other distribution of any Program via any digital output with the exception of an HDCP-protected DVI or HDMI output,
provided that Licensee takes all additional actions as may be required by Licensor to effectuate the appropriate content protection functions of such protected digital output, including but not limited to full implementation of the robustness rules set forth in the applicable adopter or similar agreement.
d. Image Quality. If Licensee or any Authorized Network:
(i) employs a compression technology for SD using (A) (1) less than 3.0 or more than 10.0 Mbps MPEG2 or (2) less than 1.0 or more than 5.0 Mbps Windows Media 9+, Real Video 9+, H.264, or H.265, (B) lower resolution than 720x480, or (C) higher resolution than 720x576, or
(ii) employs a compression technology for HD using (A) less than (1) 15.0 Mbps for MPEG2 or (2) 5.0 Mbps for MPEG4 H264/VC-1 Advanced Profile and MPEG-H part 2 HEVC H.265 linear constant bit rate, (B) lower resolution than 1440x1080 for 1080i HD materials, or (C) higher resolution than 1920x1080 for 1080i HD materials, or
(iii) makes any other revision that results in a degradation or an improvement of the quality of the image or signal of the transmission of the Programs,
Licensor shall have the right to approve such compression technology, resolution, and standards employed by or on behalf of Licensee and the right to withhold any and all Programs and/or suspend Licensee’s rights hereunder until such approval, in writing, has been given.
e. “Network” Digital Video Recorders. “Network” digital video recorders and other forms of cloud-based recording are not permitted and cloud-based or other remote access to content recorded on a digital video recorder is not permitted without Licensor’s prior written approval (such approval to be granted, conditioned, or withheld in Licensor’s sole discretion).
f. CI+ Modules. CI+ modules are not authorized for receiving on-demand content.
3. UPDATES AND SECURITY BREACHES.
a. Updates. Licensee and each Authorized Network shall implement all upgrades made available to any protection system it employs as soon as reasonably practicable but in no event later than thirty (30) days after they become available, except as otherwise authorized or directed in writing by Licensor.
b. Security Breaches. Licensee shall notify Licensor and investigate the matter as soon as reasonably practicable but in no event later than seventy-two (72) hours after Licensee becomes aware of any security breach (including, without limitation, any circumvention, breach, or failure of its security systems, conditional access systems or copy control systems, the Territorial Systems, or Licensee’s or any of its subcontractors’ servers affecting the Programs) (a “Security Breach”). In addition, Licensee must furnish Licensor with information regarding license server event abnormalities (e.g., the issuance of large quantities of license keys to a particular viewer for a particular Program that was exhibited under this Agreement). Licensor shall have the right, exercisable upon written notice to Licensee, to require Licensee to suspend the exhibition of the Programs until the Security Breach is remedied. Licensor’s exercise of its right to require Licensee to suspend the exhibition of the Programs shall in no event lengthen the Term of this Agreement or any License Periods hereunder, and such Term and License Periods shall continue to run during any such suspension.
4. ANTI-PIRACY.
a. The parties agree that protection of intellectual property (which, for the avoidance of doubt includes copyright and trade marks) is in the best interest of both parties. The parties recognize the pervasive and changing nature of intellectual property infringement and acknowledge that piracy and unauthorized distribution of copyrighted works pose a severe threat to the success of legitimate content services.
b. Subject to applicable laws, Licensee agrees to (i) notify Licensor on becoming aware of content infringing Licensor IP Rights, content embodying or derived from Licensor IP Rights, or user-generated content that contains or is derived from such content being made available from their services and following any actual or suspected security breach; (ii) take any steps possible to stop the infringement; and (iii) cooperate with Licensor and any relevant third parties in relation to the infringement, including providing all data and records reasonably necessary to identify the source of the infringement, in each case subject to applicable laws. For purposes hereof, “Licensor IP Rights” means copyrights,
ZM2033424
trademarks, or any other intellectual property rights in any content owned or controlled by Licensor and/or its affiliates or in any licensed programs owned by third parties.
c. Licensee agrees it shall not use or provide services to devices, for example, but not limited to, illegal set top boxes, applications, or plugins that give access to infringing content.
d. Subject to applicable laws, Licensee agrees to cooperate with Licensor where Licensor may act to pursue civil, administrative, or criminal remedies available against individuals or groups who infringe Licensor IP Rights.
e. Nothing in these terms shall in itself oblige Licensor to take, or refrain from taking, any direct legal steps against infringers of Licensor IP Rights, or be construed as a waiver of any legal right or remedy of Licensor; all such Licensor rights and remedies are hereby expressly reserved.
f. The parties agree that (i) neither party shall advertise, as applicable, the Licensed Channels, any Licensor IP Rights, or any intellectual property rights owned or controlled by Licensee (“Licensee IP Rights”) (A) on P2P file-sharing applications or other services, including, but not limited to, websites and newsgroups, or FTP servers that offer content that facilitates the infringing of or infringes any Licensor IP Rights or any Licensee IP Rights (the “Infringing Services”); or (B) with providers of software or devices that avoid or remove copy or access control technologies where such providers have been subject to a court decision holding that they violate applicable laws (the “Infringing Technology Providers”); and (ii) neither party shall accept advertising from Infringing Services or Infringing Technology Providers.
g. Upon request by Licensor, Licensee shall work with Licensor or other trade associations (i) in content protection outreach and education campaigns directed at universities, corporations, or other entities that require and support large network infrastructures; and (ii) in content protection public relations and educational campaigns directed at the public at large.
h. The parties agree to discuss in good faith an amendment to these content protection provisions in the event of (i) the emergence of any new technologies that enable either party to more effectively oppose infringement of Licensor IP Rights; or (ii) changes in any applicable laws which impact these content protection provisions.
i. With respect to content protection efforts, Licensee designates [INSERT
CONTACT NAME FOR LICENSEE] (or such other contact as may be provided in writing by Licensee to Licensor) as Licensee’s primary contact, and Licensor can be contacted at: xxxx.xxxxxxxxx@xxxxxx.xxx.
5. MFN TREATMENT.
If Licensee has agreed prior to the date hereof, or agrees after the date hereof, to protections (including any rights and remedies related thereto) accorded to audiovisual programming available on the Licensed Channels (including anti-piracy commitments and efforts) in any agreement or series of agreements (including side letters) with any other Major Studio that are more favorable to such other Major Studio than the corresponding term or terms applicable to Licensor hereunder, then Licensee shall promptly notify Licensor of the applicable terms of such agreement(s), and at Licensor’s option this Agreement shall be automatically amended to include any one or more of such terms, effective on the date such terms are applicable to such other Major Studio.
6. AUDIT RIGHTS.
Licensor shall have full audit rights to review and copy all relevant information and documents, wherever located (including electronic data), concerning compliance with the obligations of Licensee and/or Authorized Networks set forth in this Technical Schedule at any time during the Term hereof and for three (3) years thereafter on reasonable notice. Licensor’s rights to so audit and copy records and materials necessary to verify Licensee’s compliance with “most favored nations” provisions shall be limited to the extent necessary to permit Licensee in good faith to comply with any bona fide confidentiality restrictions by which Licensee is bound; provided, however, that Licensee shall cooperate in good faith to permit such auditing and copying of such materials to the extent not prohibited by such restrictions, including, for example, allowing audit through any third-party auditors that shall not disclose the terms of any agreements they review but shall only confirm compliance or lack of compliance with the “most favored nations” provisions hereof.
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Contract #: 5048809 -2 / 160046 -2
ANNEX I
DEFINITIONS
“Authorized Networks” means those Cable, DTH/DBS, and Closed Data Networks that, as of the date of this Agreement, (i) are owned and operated by Licensee or (ii) have entered into an affiliation agreement with Licensee whereby such Person agrees to carry and distribute the Licensed Channels in the Licensed Territories.
“Cable Network” means a transmission system (whether digital or analog) located solely in the Licensed Territories that delivers audiovisual programming directly via coaxial cable or fiber optic cable to television sets in the Licensed Territories without the use of intermediary devices (other than set-top boxes).
“Closed Data Network” means a transmission system that delivers audiovisual programming directly via copper wire and/or fiber optic cable to television sets in the Licensed Territories without the use of intermediary devices (other than set-top boxes), solely in accordance with the requirements herein, and solely from servers located in the Licensed Territories and within the private domain of the Closed Data Network service carrier and, for clarity, not using any form of the Internet for any portion of such transmission.
“DTH/DBS Network” means a transmission system that delivers audiovisual programming directly via a Ku Band digital satellite to television sets in the Licensed Territories without the use of intermediary devices (other than set-top boxes).
“Internet” means any non-proprietary (i.e., accessible to the general public regardless of physical location, means of access, and whether or not a fee is charged by an internet service provider for such access) digital network that interconnects networks, computers, or similar receiving devices so as to allow open two-way access for the origination and reception of data sufficient to convey audiovisual programming. For clarity, “Internet” shall include cellular networks.
“Major Studio” means Paramount, Sony, Universal, Disney/20th Century Studios and Warner Bros. and their respective affiliates, assigns and successors.
“Person” means any association, corporation, individual, limited liability company, partnership, trust, or other non-governmental entity or any governmental agency, court, authority, or other body (whether foreign, federal, state, local, or otherwise).
“Term” means the period of time from the start date of this Agreement through the last day of the License Period of the last Program licensed hereunder.
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Contract #: 5048809 - 2 / 160046 - 2
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