Mobile re-transmission agreement special terms

MOBILE RE-TRANSMISSION AGREEMENT SPECIAL TERMS

To the extent of any inconsistency between these Special Terms and the Standard Terms and Conditions attached, these Special Terms shall prevail.

IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized representatives.

AXN Italy S.r.l.	H3G S.p.A.
By: ___________________________ Name: Title: ___________________________	By: __________________________ Name: Roberto Forte Title: ___________________________
	By:____________________________ Name: Alberto Silva Title: ___________________________

Schedule A

Standard Terms and Conditions

The following are the standard terms and conditions governing the license set forth in the Agreement to which this Schedule A is attached.

1. 
   DEFINITIONS
   
   1. 
      “Access Fee” shall mean any fee charged by Licensee to Subscribers of its mobile network for browsing(as applicable).
      
   2. 
      “Business Day” shall mean any day other than (i) a Saturday or Sunday or (ii) any day on which banks in Los Angeles, California, Milan, Italy or London, United Kingdom are closed or authorized to be closed.
      
   3. 
      “Channels Marks” all trademarks, trade names, service marks, logos, materials, formats and concepts relating to the Licensor Channel(s), or any mark of the rights holders of any Content exhibited on the Licensor Channel(s).
      
   4. 
      “Content” shall mean any specific programming supplied under this Agreement or broadcast as part of the Licensor Channel(s) as more specifically set out in the Special Terms.
      
   5. 
      “Mobile Devices” shall mean any device known or that will be known or invented in the future supporting the Approved Format or Approved Mobile Format (as both terms are defined in Schedule B) that is authorized and/or activated by Licensee to receive the Licensed Service via Approved Mobile Delivery Means, and which is capable of wirelessly receiving the Licensed Service for display on that device (such as, by way of example, and without limitation: mobile phone and, smartphone, but excluding Tablet etc.). [#Subject to further digipol comment. Note we do not have rights to grant in relation to Tablets.]
      
   6. 
      “Security Breach” shall mean a Security Flaw that results or may result in the unauthorized availability of any Content or any other motion picture that originated in its compressed form from files obtained from the Licensed Service, which unauthorized availability may, in the reasonable good faith judgment of Licensor, result in actual or threatened harm to Licensor.
      
   7. 
      “Security Flaw” shall mean a circumvention or failure of Licensee’s secure distribution system, geofiltering technology or geofiltering facilities.
      
   8. 
      “Subscribers” shall mean customers of the Licensee’s Network System within the Territory, who are registered with Licensee to receive and decode the Licensed Service and shall include both contract and pre-pay customers.
      
   9. 
      “Term” shall mean the Initial Term, together with the period of any extension granted in accordance with the terms and conditions of this Agreement.
      
   10. 
       “Territorial Breach” shall mean a Security Flaw that creates a risk that any of the Content will be delivered to persons outside the Territory, where such delivery outside the Territory may, in the reasonable good faith judgment of Licensor, result in actual or threatened harm to Licensor.
       
   11. 
       “Territory” shall have the meaning as specified in the Special Terms of the Agreement.
       
2. 
   RESERVATION OF RIGHTS
   
   1. 
      Restrictions on License. Licensee agrees that it is of the essence of this Agreement that, without the specific written consent of Licensor or except as otherwise set forth herein:
      
      1. 
         the license granted hereunder may not be assigned, licensed or sublicensed in whole or in part;
         
      2. 
         no Licensor Channel(s) or Content may be exhibited or otherwise shown on any device other than the Mobile Device to which such Licensor Channel(s) or Content is streamed;
         
      3. 
         no Licensor Channel(s) or Content may be delivered, transmitted or exhibited:
         

1. 
   by any means other than as part of the Licensor Channel(s)s on the Licensed Service;
   
2. 
   other than in accordance with the Technical Specification (subject to clause 22.3 of Schedule B); [#Subject to digipol further comment]
   
3. 
   other than subject to the payment of the relevant subscription fee;
   
4. 
   other than via the mobile Network System;
   
5. 
   outside of the Territory; or
   
6. 
   outside the Term.
   

4. 
   retransmission via the Internet, World Wide Web, or similar is expressly excluded (other than preview of content for promotional and marketing purposes);
   
5. 
   Licensee shall not market, promote or advertise the Licensed Service outside the Territory; and
   
6. 
   Licensee shall not have the right to transmit or deliver the Licensed Channel(s) or Content in a high definition, up-converted or analogous format or in a low resolution, down-converted, transcoded or analogous format or via electronic downloading, or to permit the storage or recording of Content.
   

1. 
   Reservation of Rights. All licenses, rights and interest in, to and with respect to the Licensor Channel(s) and Content, the elements and parts thereof, and the media of exhibition and exploitation thereof, not specifically granted herein to Licensee (including, without limitation, theatrical, non-theatrical, home video, electronic downloading, sell-through, video downloading, subscription pay television, basic television, free television, high definition television, so-called “subscription video on demand” and any so-called PVR or “personal video recorder” rights) shall be and are specifically and entirely reserved by and for Licensor. Licensor reserves all copyrights and all the other rights in the images and sound embodied in the Licensor Channel(s) and Content together with the Promotional Materials (as defined below). Licensee acknowledges that Licensee has no right in the Licensor Channel(s) or Content or the images or sound embodied therein, together with the Promotional Materials other than the rights other than as set out in the terms and conditions set forth in this Agreement. It is explicitly understood that the entering into of this Agreement shall not be construed as granting to Licensee or any other person or entity any interest in the copyright or any other right in the Licensor Channel(s) or Content and Promotional Materials, and nothing contained in this Agreement is intended to convey or will convey to Licensee any ownership or other proprietary interests in the Licensor Channel(s) or Content and Promotional Materials and Licensor retains the right to fully exploit the Licensor Channel(s) or Content and Promotional Materials and Licensor’s rights therein without limitation.
   
2. 
   Obligation to Notify. Licensee shall immediately notify Licensor of any unauthorized transmissions or exhibitions of any Licensor Channel(s) or Content of which it becomes aware.
   
1. 
   PROGRAMMING; NUMBER OF EXHIBITIONS.
   
   1. 
      All Licensor Channel(s) shall be made continuously available to Subscribers on the Licensed Service during the Term.
      
   2. 
      All Licensor Channel(s) shall receive due prominence on the Licensed Service consistent with channels of similar genre and appeal.
      
2. 
   Notwithstanding anything contained herein to the contrary, Licensee agrees that (i) no more than 20% of the programming available on the Portals shall be Adult Programs during the Term hereof, (ii) no Adult Program shall be exhibited, promoted or listed on the same or previous scrollin [#scrolling?] screen (other than the home page of the Portal, which may contain a textual link with a section of the user interface exhibiting, promoting or listing Adult Programs) as a screen on the Licensed ServicePortals on which Content or Licensor Channel(s) is promoted or listed and (iii) no Adult Program will be placed within the same TV scroll in section page where AXN bouquet will be offered (classified within the same genre/category as any Content or Licensor Channel(s)). If Licensee violates the terms of this clause 3.3, then Licensor shall have the right to cause Licensee to immediately cease exploiting any or all Content and/or the Licensor Channel(s). As used herein, “Adult Program” shall mean any motion picture or related promotional content that has either been rated (a) NC-17 (or successor rating or, if unrated, would have likely received an NC-17 rating if it had been submitted to the MPAA for rating, other than a title deemed not to be an Adult Program by Licensor in its sole discretion) or (b) X (or is unrated and would have likely received an X rating if it had been submitted to the MPAA for rating). [#To discuss. Need to understand what this means as there should be no Adult Content (as defined) in the same section as the AXN Bouquet.]
   
3. 
   CONTENT PROTECTION AND SECURITY.
   
   1. 
      General. Subject to clause 5.2, Licensee represents and warrants that it has put in place state of the art secure and effective, stringent and robust security systems and technologies to prevent theft, pirating, unauthorized exhibition (including, without limitation, exhibition to non-Subscribers and exhibition outside the Territory) and unauthorized copying or duplication of any video reproduction or compressed digitized copy of any Content and that such security systems, procedures and technologies are and shall be no less stringent or robust than those which Licensee employs with respect to content licensed from other licensors. Licensee maintain and upgrade such security systems, procedures and technologies (including, without limitation, encryption methods) as Licensor shall determine in its sole discretion is necessary to prevent theft, pirating, unauthorized exhibition (including, without limitation, exhibition to non-Subscribers and exhibition outside the Territory) and unauthorized copying or duplication of any video reproduction or compressed digitized copy of any Content. Licensee shall comply with all instructions relating to the foregoing given by Licensor or Licensor’s representative. Licensee shall comply with Licensor’s specifications concerning the storage and management of its digital files and materials at Licensee’s sole expense and such specifications may be updated at any time during the Term. Licensee shall not authorize any use of any video reproduction or compressed digitized copy of any Content or the Licensor Channels for any purpose other than as is expressly permitted herein. Licensor or its representative shall have the right to inspect and review Licensee’s security systems, procedures and technologies at Licensee’s places of business (including off-site facilities used by Licensee) as Licensor deems necessary, provided such inspection is conducted during regular business hours and does not interfere materially with Licensee’s operations.
      
   2. 
      Content Protection Requirements and Obligations. Licensee shall at all times utilize content protection and DRM standards no less stringent or robust than the standards attached hereto as Schedule C and incorporated herein by this reference. All Content delivered under this Agreement shall comply with such encryption (with the exception of Mobile Media Delivery detailed in Schedule “B” clause 22.3) and content protection requirements with the exception of Mobile Media Delivery detailed in Schedule “B” chapter 22.3. [#Subject to further digipol comment]
      
   3. 
      Obligation to Monitor for Hacks. Licensee shall take such measures as are reasonably necessary to determine the existence of Security Breaches or Territorial Breaches and shall promptly notify Licensor if any such occurrences are discovered.
      
   4. 
      Suspension Notice. Licensee shall notify Licensor immediately upon learning of the occurrence of any Security Breach or Territorial Breach, and shall provide Licensor with specific information describing the nature and extent of such occurrence. Licensor shall have the right to suspend the availability (“Suspension”) of its Content and/or Licensor Channel(s) on the Licensed Service at any time during the Term in the event of a Security Breach or Territorial Breach by delivering a written notice to the Licensee of such suspension (a “Suspension Notice”). Upon its receipt of a Suspension Notice, the Licensee shall take steps immediately to remove the Content and/or Licensor Channel(s) or make the Content and/or Licensor Channel(s) inaccessible from the Licensed Service as soon as commercially feasible (but in no event more than three (3) calendar days after receipt of such notice).
      
   5. 
      Reinstatement/Termination. If the cause of the Security Flaw that gave rise to a Suspension is corrected, repaired, solved or otherwise addressed in the sole judgment of Licensor, the Suspension shall terminate upon written notice from Licensor and Licensee’s obligation to make the Content and/or Licensor Channel(s) available on the Licensed Service immediately resumes. For clarity, no period of Suspension shall extend the Term in time and, upon a notice that a Suspension has ended, the Term shall end as provided in Special Terms of the Agreement unless earlier terminated in accordance with another provision of this Agreement. Upon receipt of such written notice, Licensee shall include the Content and/or Licensor Channel(s) on the Licensed Service as soon thereafter as practicable. If more than one (1) Suspension occurs during the Term, or any single Suspension lasts for a period of three (3) months or more, Licensor shall have the right, but not the obligation, to terminate this Agreement (“Security Flaw Termination”) by providing written notice of such election to the Licensee.
      
4. 
   STATEMENTS; REPORTS.
   

The invoices (including COMPANY’s complete bank details) shall be addressed to:

H3G S.p.a. Via Leonardo da Vinci, 1 20090 Trezzano sul Naviglio (MI) Italy P. IVA: 13378520152 To the attention of: Amministrazione - Contabilità fornitori

With copy anticipated by e-mail to: Francesca.Grismondi@h3g.it

2. 
   Reports shall be sent by email and overnight mail to:
   

Giampaolo Aloisi giampaolo_aloisi@spe.sony.com

Mattia Cavanna mattia_cavanna@spe.sony.com

2. 
   In the event Licensee develops real-time reporting capabilities, Licensor shall receive direct access to such real-time reports.
   

7. 
   PAYMENTS. (note: this should be article n.7)
   
   1. 
      Unless and until Licensee is otherwise notified by Licensor, all payments hereunder shall be paid by cheque or wire transfer to Licensor in Euro to the following account (or to such other account as Licensor hereafter shall notify Licensee) within the date such payments are required to be made by wire transfer to:
      

c/o J.P. Morgan Chase Bank N.A.

Chaseside, Bournemouth, UK, BH77DA

Account number: 32548402

Bank code/SWIFT code: CHASGB2L

Iban: GB27 CHAS 609242 32548402

1. 
   Subject to the provision by Licensor to Licensee of the relevant invoice, Licensee covenants and agrees to make all payments to Licensor hereunder in a timely manner within 60 days end of month from the date of Licensor’s invoice. For the avoidance of doubt, acceptance thereof by Licensor shall not constitute a waiver of any of Licensor’s rights nor preclude Licensor from questioning the correctness of same at any time. Without prejudice to any other right or remedy available to Licensor, if Licensee fails to pay any license fees or advances or guarantees when due and payable, and such default continues for fifteen (15) days after written notice hereof, interest shall accrue on any such overdue amount from the fifteen day after the written noticedate such amount was originally due until such time as the overdue amount is paid in full, at a rate equal to the lesser of one hundred ten twoten percent (11011002%) of EURIBOR three months announced by the Financial Times (the “Prime Rate”) or the permitted maximum legal rate. ;-[#Re time for payment – see comment in special terms re reporting and invoiceing. Re interest rate applicable, we will only agree to the deletion of the maximum legal rate if the rate is 110% of Euribor. There must be an incentive to pay on time.]
   
2. 
   Licensee shall pay and hold Licensor -harmless from and against any and all taxes due as related to the invoices sentderived and earned under this Agreement (including interest and penalties on any such amounts but other than corporate income and similar taxes). All prices and payments stated herein shall be exclusive of and payments shall be made without any set off, deduction or withholding for or on account of any tax, duty or other charges, of whatever nature imposed by any taxing or governmental authority. [#Relates to Licensee’s earning of gross revenue as well for which Licensee is responsible for the payment of tax]
   

6. 
   CUTTING, EDITING AND INTERRUPTION. Licensee shall not make, or authorize any others to make, any modifications, deletions, cuts, alterations or additions in or to any Licensor Channel without the prior written consent of Licensor. For the avoidance of doubt, no panning and scanning, time compression or so-called “up-conversion,” down-conversion, transcoding or similar modifications shall be permitted. Without limiting the foregoing, Licensee shall not delete the copyright notice or credits from the main or end title of any content or from any other materials supplied by Licensor hereunder. No exhibitions of any Licensor Channels hereunder shall be interrupted for intermission, commercials or any other similar commercial announcements of any kind.
   
7. 
   RETRANSMISSION. As between Licensor and Licensee, (a) Licensor is the owner of all retransmission and private copy rights, if any, in the Content and all royalties or other monies collected in connection therewith and (b) Licensee shall have no right to exhibit or authorize the exhibition of the Licensor Channels or any part thereof by means of retransmission other than in accordance with this Agreement or to authorize the off-air copying of the Licensor Channels or any part thereof.
   
8. 
   PROMOTION. Without limiting any other provision hereof, Licensee shall use all reasonable commercial efforts to market and promote the Content and Licensor Channel(s) in accordance with this clause 9, the Marketing Commitment set out in the Special Terms and any guidelines provided by Licensor, subject at all times to Licensor’s prior written approval.
   
   1. 
      Licensee shall have the right to use or authorize the use of logos, written summaries, extracts, synopses, photographs or other materials prepared and provided or made available by Licensor or, if not prepared by Licensor, approved in writing in advance by Licensor (“Promotional Materials”), solely for the purpose of advertising, promoting and publicizing the exhibition of the Content and the Licensor Channel(s) on the Licensed Service, and the right to advertise, publicize and promote, or authorize the advertising, publicity and promotion of, the exhibition of any Content and Licensor Channel(s) on the Licensed Service subject to any restrictions as to timing as notified by Licensor.
      
   2. 
      Upon Licensor’s request, Licensee shall run Licensor-specified trailers promoting Content and/or the Licensor Channel(s) or feature wraps promoting Content and/or Licensor Channel(s) and merchandise associated with Content and/or Licensor Channel(s) (including, without limitation, cross-promotional merchandize offered by promotional partners of the Content) before and/or after the Programming Loops.
      
   3. 
      Licensee covenants and warrants that (i) it shall fully comply with all instructions furnished in writing to Licensee with respect to the Promotional Materials used by Licensee in connection with this clause 9 (including size, prominence and position of Promotional Materials but not including a requirement that the Content be promoted with greater prominence than comparable product from other major studios) and (ii) the same shall not be used so as to constitute an endorsement, express or implied, of any party, product or service, including, without limitation, the Licensed Service nor shall the same be used as part of a commercial tie-in. Any advertising or promotional material created by Licensee, any promotional contests to be conducted by Licensee and any sponsorship of any Content or Licensor Channel(s) (as distinguished from the standard practice of selling commercial advertising time) shall require the prior written consent of Licensor and shall be used only in accordance with Licensor’s instructions.
      
   4. 
      The Content and Licensor Channel(s) shall receive no less favourable treatment with regard to any aspect of programming or promotion, including, without limitation, allocation of space on the Licensed Service interface, placement and prominence on the home page or within any genre or category, navigators, graphic user interfaces, cross-channel real estate, barker channel and in any other available promotional medium (to the extent permissible with the other provisions of this clause 9) than the programming/channels of any other content provider.
      
   5. 
      The rights granted in this clause 9 shall be subject to and Licensee shall comply with any and all restrictions or regulations of any applicable guild or union and any third party contractual provisions with respect to the advertising and billing of the Content as Licensor may advise Licensee. In no event shall Licensee be permitted to use any excerpts from Content other than as provided by Licensor and in no case in excess of two (2) minutes (or such shorter period as Licensor may notify Licensee from time to time) in the case of a single continuous sequence or three (3) minutes in the aggregate from any single Content (or such shorter period as Licensor may notify Licensee from time to time).
      
   6. 
      Notwithstanding the foregoing, Licensee shall not, without the prior written consent of Licensor, (a) modify, edit or make any changes to the Promotional Materials or (b) promote the exhibition of any Content by means of contest or giveaway. Appropriate copyright notices shall at all times accompany all Promotional Materials.
      
   7. 
      The names and likenesses of the characters, persons and other entities appearing in or connected with the production of Content shall not be used separate and apart from the Promotional Materials which will be used solely for the purpose of advertising the exhibition of such Content on the Licensed Service, and no such name or likeness shall be used so as to constitute an endorsement or testimonial, express or implied, of any party, product or service, by “commercial tie-in” or otherwise. Licensee shall not use Licensor’s name or logo or any Content or any part of any Content as an endorsement or testimonial, express or implied, by Licensor, for any party, product or service including Licensee or any program service or other service provided by Licensee.
      
   8. 
      In addition to the Quarterly Reports referred to in the Special Terms and clause 6 of these Standard Terms and Conditions, Licensee shall provide Licensor with quarterly top level reports detailing general usage and marketing information. Such reports shall detail usage breakdown by days and hours together with other available data statistics and usage patterns.
      
   9. 
      Within thirty (30) calendar days after the last day of the Term, Licensee shall destroy (or at Licensor’s request, return to Licensor) all Promotional Materials for such Content.
      
   10. 
       Any promotion may position programming on mobile phones in a positive light, but in no event shall any such promotion contain negative messages about any means of film or television distribution.
       

5. 
   COLLECTING SOCIETIES: Licensee acknowledges and agrees that it shall, to the extent payable, be required to pay certain license fees or royalties to third party collecting societies within the Territory for in relation to music rights holders for performance, mechanical, communicating and/or making available rights in addition to any underlying rights of scriptwriters, directors or authors (as applicable) (“Collecting Society Rights”).
   

11. 
    Licensor does not represent or warrant that Licensee may exercise the Collecting Society Rights without obtaining a valid license and without payment of the relevant royalties or license fee to the SIAE/SCF (or other applicable collecting society in the Territory). Where such royalty or license fee is required to be paid in connection with the promotion and distribution of Content and the Licensor Channels (“Collecting Society Royalties”), Licensee shall be responsible for the payment thereof and shall hold Licensor free and harmless there from.
    
12. 
    Licensor shall furnish Licensee with the list of the music tracks inserted in the programs (music cue sheet) and to hold all reasonable information that Licensee could need to fulfil its obligations towards the Collecting Societieswith all necessary information regarding the title, composer and publisher of such music. Licensor shall hold Licensee free and harmless there from the case of lack of information from Licensor to Licensee regarding Collecting Societies. Licensee shall obtain all necessary information regarding the title, composer and publisher of such music through Licensor’s reporting agent, Soundmouse Ltd 26 Litchfield Street, Covent Garden, London WC2H 9TZUK, the costs of which shall be borne by Licensee. [#To be discussed further]
    

1. 
   Licensee agrees that it shall not deduct any third party costs associated with the clearance of the Collecting Society Rights nor the Collecting Society Royalties, if any, from Licensor’s License Fee.
   
2. 
   Licensee represents and warrants that it shall (i) accurately and expeditiously report the use of all music to all relevant music collecting societies and provide Licensor at its request, with copies of all such details so reported; (ii) pay, or procure payment of any Collecting Society Royalties due to all relevant collecting societies for all permitted use of any music; and (iii) keep Licensor indemnified from any of the fees and royalties referred to in this clause 6 together with any other fees, expenses, costs, claims, demands or losses (including legal fees) incurred or suffered by Licensor as a result of Licensee’s failure to observe the provisions of this part.
   
6. 
   LICENSOR’S REPRESENTATIONS AND WARRANTIES. Licensor hereby represents and warrants to Licensee that:
   
   1. 
      It is a company duly organized under the laws of the state of its organization and has all requisite corporate power and authority to enter into this Agreement and perform its obligations hereunder;
      
   2. 
      The execution and delivery of this Agreement by Licensor has been duly authorized by all necessary corporate action; and
      
   3. 
      This Agreement has been duly executed and delivered by and constitutes a valid and binding obligation of Licensor, enforceable against such party in accordance with the terms and conditions set forth in this Agreement, except as such enforcement is limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors’ rights generally and by general equitable or comparable principles.
      
7. 
   LICENSEE’S REPRESENTATIONS AND WARRANTIES. Licensee hereby represents, warrants and covenants to Licensor that:
   
   1. 
      It is a company duly organized under the laws of the state of its organization and has all requisite corporate power and authority to enter into this Agreement and perform its obligations hereunder;
      
   2. 
      The execution and delivery of this Agreement by Licensee has been duly authorized by all necessary corporate action;
      
   3. 
      This Agreement has been duly executed and delivered by and constitutes a valid and binding obligation of Licensee, enforceable against such party in accordance with the terms and conditions set forth in this Agreement, except as such enforcement is limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors’ rights generally and by general equitable or comparable principles;
      
   4. 
      Licensee has obtained and shall maintain all licenses and other approvals necessary to own and operate the Licensed Service in the Territory and otherwise exploit the rights granted hereunder;
      
   5. 
      The Licensed Service does not infringe any third party intellectual property rights;
      
   6. 
      No Content shall be transmitted or exhibited except in accordance with the terms and conditions of this Agreement.
      
8. 
   INDEMNIFICATION.
   
   1. 
      Licensor shall indemnify and hold harmless Licensee and its representatives (with respect to a party, its officers, directors, equity owners, employees and other representatives and its parents, subsidiaries and affiliates and their officers, directors, equity owners, employees and other representatives (collectively, the “Representatives”)) from and against any and all claims, damages, liabilities, costs and expenses, including reasonable counsel fees, arising from or in connection with (i) the breach by Licensor of any of its representations or warranties or any material provisions of this Agreement and (ii) claims that any of the Content, infringes upon the trade name, trademark, copyright, music synchronization, literary or dramatic right or right of privacy of any claimant (not including music performance, mechanical, communicating and making available rights (as applicable) which are covered under clause 6 of this Schedule) or constitute a libel or slander of such claimant; provided that Licensee shall promptly notify Licensor of any such claim or litigation. Notwithstanding the foregoing, the failure to provide such prompt notice shall diminish Licensor’s indemnification obligations only to the extent Licensor is actually prejudiced by such failure. In addition, Licensor shall not be required to indemnify Licensee or its Representatives for any claims resulting from Licensee exhibiting any Content or using Promotional Materials in a form other than as delivered by Licensor, or due to Licensee’s editing or modification of any Content or Promotional Materials, or due to Licensee’s authorization of a third party to do any of the foregoing.
      
   2. 
      Licensee shall indemnify and hold harmless Licensor and its Representatives from and against any and all claims, damages, liabilities, costs and expenses, including reasonable counsel fees, arising from or in connection with (i) the breach of any representation, warranty or other provision of this Agreement by Licensee, (ii) the exhibition of any material (other than material contained in Content or Promotional Materials as delivered by Licensor) in connection with or relating, directly or indirectly, to such Content or (iii) the infringement upon or violation of any right of a third party other than as a result of the exhibition of the Content in strict accordance with the terms of this Agreement; provided that Licensor shall promptly notify Licensee of any such claim or litigation. Notwithstanding the foregoing, the failure to provide such prompt notice shall diminish Licensee’s indemnification obligations only to the extent Licensee is actually prejudiced by such failure.
      
   3. 
      In any case in which indemnification is sought hereunder:
      
      1. 
         At the indemnifying party’s option, the indemnifying party may assume the handling, settlement or defense of any such claim or litigation. If the indemnifying party assumes the handling, settlement or defense of any such claim or litigation, the party to be indemnified shall cooperate in the defense of such claim or litigation and the indemnifying party’s obligation with respect to such claim or litigation shall be limited to holding the indemnified party harmless from any final judgment rendered on account of such claim or settlement made or approved by the indemnifying party in connection therewith and expenses and reasonable attorneys’ fees of the indemnified party incurred in connection with the defense of such claim or litigation prior to the assumption thereof by the indemnifying party and any reasonable out-of-pocket expenses for performing such acts as the indemnifying party shall request. If the indemnifying party does not assume the handling, settlement or defense of any such claim or litigation, the indemnifying party shall, in addition to holding the indemnified party harmless from the amount of any damages awarded in any final judgment entered on account of such claim, reimburse the indemnified party for reasonable costs and expenses and reasonable attorneys’ fees of the indemnified party incurred in connection with the defense of any such claim or litigation; and
         
      2. 
         The party seeking indemnification shall fully cooperate with the reasonable requests of the other party in its participation in and control of any compromise, settlement, litigation or other resolution or disposition of any such claim. The indemnifying party shall not consent to the entry of any final judgment in any action without the indemnified party’s prior written approval except, in the case where Licensor is the indemnifying party, where such consent involves the agreement not to further exploit Content.
         
9. 
   TERMINATION.
   
   1. 
      Licensee Default: In the event that Licensee:
      
      1. 
         fails to make full payment of the License Fee as provided in the Special Terms and clause 6 above to Licensor, and such default continues for fifteen (15) days after written notice hereof; or
         

2. 
   otherwise defaults in the performance of any of its material obligations hereunder and Licensee fails to cure such default within thirty (30) days after delivery by Licensor to Licensee of written notice of such default; or
   

3. 
   Licensee becomes insolvent, or a petition under any bankruptcy or similar act shall be filed by or against Licensee (which petition, if filed against Licensee, shall not have been dismissed within thirty days thereafter), or Licensee executes an assignment for the benefit of creditors, or a receiver is appointed for the assets of Licensee, or Licensee takes advantage of any applicable bankruptcy, insolvency, reorganization or arrangement or any other like statute;
   

(each of the above acts is hereinafter referred to as a “Licensee Event of Default”) then Licensor may, in addition to any and all other rights which it may have against Licensee:

4. 
   immediately terminate this Agreement and each license hereunder by giving written notice to Licensee with immediate effect; and
   

5. 
   suspend all rights and licenses granted to Licensee under this Agreement in relation to some, all or any of the Licensor Channels; and
   

6. 
   require Licensee immediately to cease making the Licensor Channels available.
   

2. 
   Applicable Rate: In addition to any and all other remedies in respect of a Licensee Event of Default which Licensor may have under applicable law, Licensor shall be entitled to recover from Licensee all payments past due from Licensee to Licensor hereunder, together with interest thereon in accordance with and at the applicable rate specified in clause 6.2 above when such default continues for fifteen (15) days after written notice hereof.
   

3. 
   Licensor Default: Subject to clause 13.414.4,(ref wrong or missing) in the event that Licensor:
   

1. 
   defaults in the performance of any of its material obligations hereunder and fails to cure such default within fifhteen thirty (3015) days after delivery by Licensee to Licensor of written notice of such default; or [#Consistent with 13.1.2 above. Only breach re non-payment has the shorter 15 days rectification period.]
   

2. 
   becomes insolvent, or a petition under any bankruptcy or similar act shall be filed by or against Licensor (which petition, if filed against Licensor, shall not have been dismissed within thirty days thereafter), or Licensor executes an assignment for the benefit of creditors, or a receiver is appointed for the assets of Licensor, or Licensor takes advantage of any applicable bankruptcy, insolvency, arrangement or reorganization or any other like statute;
   

4. 
   Notwithstanding anything to the contrary contained in clauses 13.1 or 13.3Error: Reference source not found or 14.3 (reference wrong or missing) hereof, no termination of this Agreement for any reason shall relieve or discharge, or be deemed or construed as relieving or discharging, any party hereto from any duty, obligation or liability hereunder which was accrued as of the date of such termination (including, without limitation, the obligation to pay any amounts payable hereunder accrued as of such date of termination or any indemnification).