“Licensor Channels” shall mean the simultaneous and unaltered re-transmissions of Licensor’s linear television channels, AXN and AXN Sci Fi, including all advertising and interstitials forming part of those channels, programmed solely by Licensor using the Channels Marks and carried by Licensee subject to the requirements of this Agreement.
“Licensed Service” shall mean the non-advertising supported Subscription Service that is wholly owned and controlled by Licensee, made available via the Portals, for which Licensee is solely responsible for Subscriber billing and customer relationships and is accessible only to Subscribers in the Territory who have a “3G” package.
“Subscription Fee” shall mean the aggregate total subscription (Weekly Subscriptions on AXN UMTS bouquet and application called “mobile 3 TV”; Monthly Subscription for application called “TV Italia”) (the offer could change as a result of Licensee (H3G) marketing strategies) fee charged by Licensee to a Subscriber, whether or not collected, for the privilege of receiving the Licensor Channels Subscription. No deductions shall be allowed. Licensee may not charge a Subscriber any data or transmission fee in addition to the Subscription Fee, with exception of any Access Fee as defined in the Standard Terms and Conditions. [#New offers will need to be discussed and agreed as they are developed] “Network System” shall mean the UMTS, EDGE or HSDPA network systems owned and operated by Licensee (and/or by any third party distribution systems where approved by Licensor on a case by case basis).
“Portals” shall mean the platforms owned and operated by Licensee via which the Licensed Service is offered, namely:
H3G UMTS portal branded ”App&Store”;
the application offered to Licensee’s customer base, branded “Mobile 3TV”; and
the application offered to Licensee’s iPhone users, branded “TV Italia”.
For the avoidance of doubt, “Portals” specifically excludes the “WebStore” portal or any Internet delivery based platform accessible through PC, or Laptop, set top box, Internet connected TV and tablets.[ “Subscription Service” shall mean the mobile video programming service offered to a Subscriber located solely within the Territory on an on-going basis to receive the Licensor Channels (and, in case, other third party content) for which a subscription fee is charged, as specified hereafter: weekly Subscriptions on AXN UMTS bouquet and “mobile 3 TV”; monthly Subscription only for “TV Italia”.
“Technical Specification” shall mean: [#Still being considered by digipol so further changes may be required. Have made distinction between Technical Specification and Approved Mobile Format in Exhibit B. Need sign off from digipol on what this tech spec can be but note it will only apply at a level potentially hight than 320x240 for devices that support an approved DRM and to which an encrypted stream is sent]
(i) video resolution not greater than 480*320 320*240640x480;
(ii) video bit rate no greater than 2Mb/s.
Fram Rate not greather than 30 Frame per seconds.
The right within the Territory to market, promote, advertise, distribute and transmit the Licensor Channels in accordance with the Technical Specification (subject to clause 22.3 of the Schedule B) via the Network System to Subscribers of Licensed Service by means of mobile streaming only in accordance with the terms and conditions of this Agreement (comprised of both these Special Terms and the Standard Terms and Conditions exhibited in Schedule A).
In no event shall the Licensed Service permit downloading, recording or retention of Content; provided, however, that where technically necessary solely to facilitate streaming, limited storage of a partial file on a transitory basis for buffering or caching on the Mobile Device of a Subscriber is allowed.
Subscriber access to the Licensed Service while roaming is expressly excluded.
Italy, Vatican City and San Marino
The term during which Licensor shall be required to make the Licensor Channels available for licensing and Licensee shall be required to license the Licensor hereunder shall commence on 1 20 March April 2011, and shall terminate on 28 19 AprilFebruary 2013 (“Initial Term”). Thereafter, the Initial Term shall automatically be extended for a one year period (the “Extension Period”), beginning on 1 February of the relevant year unless Licensor, in its sole discretion, gives Licensee written notice of non-extension at least sixty (60) days prior to the expiration of the Initial Term..
Licensor shall be entitled to terminate the Agreement on no less than three (3) months prior written notice in the event that the total License Fees paid to Licensor for the first six (6) months of the Initial Term are less than €100,000. [#This has already been commercially agreed.]
Both parties shall be entitled to terminate the Agreement on no less than three (3) months prior written notice in any moment of the Term.
Any scheduled content of the linear television channels for which the requisite rights for retransmission by mobile streaming are not cleared, may not be retransmitted under this agreement in accordance with the provisions under part 13.
Licensee shall comply with any applicable rating from the appropriate rating bodies and authorities. Licensee shall advise Licensor of any relevant rating and regulatory issues including viewing restrictions.
Licensee agrees that the Licensed Service and related promotional materials including relevant websites, shall not contain any information that, in Licensor’s sole reasonable judgment, may be in bad taste, or in violation of any local law, may constitute libel or slander, may be inconsistent with Licensor's public image, may fail to meet local community standards regarding obscenity or indecency, or may tend to bring disparagement, ridicule, or scorn upon Licensor or any of its Affiliates.
The Licensed Service shall be made available via the Portals and distributed by the Network System.
Licensee shall offer the Licensor Channels to Subscribers as a unique and standalone bouquet branded “AXN Entertainment”.
Both Parties shall be entitled to review the standalone bouquet after the first three (3) months of the Initial Term.
Licensee shall establish in its sole discretion the price charged to a Subscriber by Licensee (“End User Price”) for each Subscription. Such price shall appropriately reflect market value for such content as a prestige product, in order not to detract from public perception of the quality of such content.
Design - Portal and User Interface
Licensee shall determine the look and feel, together with the layout and navigation of the Licensed Service including the Portals. Such design and navigation, and any subsequent changes to it, to the extent they relate to the Licensor Channels shall be subject to Licensor’s written approval, to be obtained prior to the creation and implementation of the portal and user interface, such approval will not be unreasonably withheld or denied. Licensor shall use all reasonable endeavours to provide such approval within - (10) business days. It shall be considered not approved anyway if the consent iswill not be provided by Licensor within 10 (ten) business days, starting from the date an approval request is made by Licensee. [#We cannot agree to deemed approval in relation to our brands.] The Licensor Channels shall be made available in separately branded “AXN Entertainment” section. In Exhibit E there will be detailed the actual look and feel of the TV Area on “App&Store”, where by the AXN Entertainment bouquet will be offered and as at the date of this Agreement is approved.
All costs associated with the design and creation of the portal and user interfaces shall be borne by Licensee.
Licensee shall implement any changes to the design of the portal and user interface reasonably requested by Licensor during the Term. Licensee shall use all reasonable efforts to ensure such changes to design are made with thirty (30) days of such request.
Licensee shall be solely responsible, at its own expense, for:
Subject to the payment of the relevant Subscription, making the Licensed Service available on all 3G Mobile Devices available in the Territory during the Term;
hosting, operating and maintaining the technical infrastructure and Portals necessary to enable the re-transmission of the Licensor Channels to Subscribers;
transmitting/streaming Licensor Channel(s);
blocking the signal for content identified by Licensor in accordance with part 13 below as content for which it does not hold mobile re-transmission rights, to ensure such content is not made available to Subscribers;
maintaining and ensuring stable connection with the billing platform; and
billing Subscribers and collecting all revenues.
As between the parties, Licensee will be responsible for all costs associated with encryption and transmission by Licensee of the Licensed Service.
Licensor shall provide Licensee with schedule grids for each of the Licensor Channels six (6) weeks prior to transmission of the linear channels. In the event of any subsequent changes to the schedule grids, Licensor shall notify Licensee of such changes as soon as reasonably possible. The schedule grids must be provided by the Licensor at least 3 days in advance in order to allow the Licensee to guarantee the coverage of “Blocked Content”. [#We state in previous sentence they will be provided 6 weeks before transmission]
Such grids shall clearly indicate the programmes for which Licensor does not hold mobile re-transmission rights and in relation to which Licensee must block the signal of the re-transmission (“Blocked Content”) to ensure such content is not re-transmitted to Subscribers. Licensor shall use all reasonable efforts to ensure that content for which it does not hold the necessary mobile re-transmission rights shall not exceed 20% of the total linear schedule of each Licensor Channel. Licensor will provide to Licensee graphic support (slate with channel brand) in order to cover contents without re-transmission rights.
Licensor will use all reasonable efforts to provide schedule grids to Licensee in XML format as provided in the technical specifications described in part 5 of the Technical Annex “Specifications interface and procedures about data exchange EP “set out in Exhibit G within two (2) months from the date of this Agreement.
Until such time as Licensor is able to create such XML files, Licensee shall provide the schedule grids by way of excel spreadsheet and Licensee shall manually block the Blocked Content from the mobile re-transmission of the Licensor Channels. At the end of the two three (32) month period referred to above, Licensor shall use reasonable efforts either to supply schedule grids in XML format or hold mobile re-transmission rights for 100% of the content made available on the Licensor Channels.
For the avoidance of doubt, Licensee shall be liable for any failure to block the signal for any content for which Licensor notifies Licensee in accordance with this part 13 that it does not hold the necessary mobile re-transmission rights and shall indemnify Licensor in respect of any such failure.
Licensor holds OFCOM licence number TLCS 970 in relation to the broadcast of AXN and OFCOM licence number TLCS 1508 in relation to the broadcast of AXN SCI. oblige itself to obtain every permit, license and authorization in compliance with the law and all rules applicable in the field, to grant the rights to Licensee under this Agreement, including the compliance to the Rule n. 607/10/CONS of 25th November 2010 which requires the Ministerial Authorization for “video on demand” and streaming modality of transmission. [#Rule 607/10/CONS deals with video on demand not linear transmission. It is in fact Rule 606/10/CONS which deals with linear transmission and relates to DTT. We are not required to comply with this as we are covered by the OFCOM licences referred to above by virtue of the country of origin principle.]
In consideration of the rights granted, Licensee shall pay Licensor the greater of:
It is agreed that the actual retail price and subsequent Minimum License Fee could change following the commercial strategies decided and approved by the Parties.
The “Actual License Fee” shall be calculated as the product of the following:
the total number of Subscriber for the bouquet branded “AXN Entertainment”; multiplied by:
the actual retail price for each Subscription to the relevant Portal (after deducting VAT as applicable, but with no deductions for any other taxes or fees) (charged on a weekly basis for the H3G UMTS and Mobile 3TV Portals, and on a monthly basis for the TV Italia Portal); multiplied by
Licensor’s Share for such Licensed Content.
Licensor’s Share shall mean:
H3G UMTS Portal
No other revenue may be derived in relation to the Licensor Channels as made available on the Licensed Service other than in relation to the relevant subscription fees. Licensee shall notify Licensor in writing of any proposed additional revenue streams directly derived from the Licensed Service or any part of it, including advertising revenue. Upon such notification, the Parties shall discuss in good faith potential revenue sharing of any such additional revenue streams which in any event shall be no less than the revenue share set out above.
With respect to each month of the Term, until the last month of the Term of this Agreement, Licensee shall deliver to Licensor a statement every three months (“Quarterly Report”), setting forth appropriate calculations of, and data supporting the License Fees due for each month (“Reporting Month”) within 15 days following the conclusion of every third Reporting Monthwithin seventy five (75) days from the end of each two month period during the Term, Licensee will provide Licensor with a statement, showing the prices invoiced or charged to Licensee’s Subscribers for the access to the Services, (including each portion thereof) (“Statement”). [#Proposed wording would result in first payment not occurring until 6 mths into the agmt. We would consider monthly reporting, quarterly invoicing and payment within 30 days as an alternative.] [#This is the minimum amt of information required to support the calculations of the License Fees. This is financial not marketing.]
, Marketing team will provide additional information showing in reasonable detail for eachPortal at least the following information:
number of Subscribers [#as per definition in Std Terms – Subscription is not the defined term.] to the Licensor Channels, broken down by Portal;
actual retail price per Subscription to Licensor Channels, broken down by Portal;
Licensee shall use best efforts to provide periodically all information available that will enable Licensor to evaluate the success of the service which may include (but is not limited to):
Total number of Subscribers to each Portal;
number of unique users that have viewed Licensor Channels;
average viewing minutes of each of Licensor Channels. ;
Licensee Marketing Commitments
Licensor and Licensee commits to a co-branded promotion across:
its Licensor Channels in the case of the Licensor; and
in the case of the Licensee, across the Licensed Service, each of the Portals (including by way of promotional banners) and via sms and mms campaigns to Licensee’s entire customer base;
in accordance with Exhibit F. Licensee commits to the same Marketing Commitment set out in Exhibit for each year of the Term.
Licensor commits to including a co-branded TV promotion on each of the Licensor Channels. ( check with AXN: please explain details) Licensee shall report a breakdown of the marketing activities incurred on a quarterly basis.
Use of marks and logos
Licensee agrees and acknowledges, that as between Licensee and Licensor, the Licensor Channel materials and the Channel Marks (as defined in the Standard Terms and Conditions) brands, logos, trademarks, devices or any other similar things identifying or associated with the Licensor Channels (“Licensor Marks”) and the goodwill associated therewith are, as between Licensor and Licensee, the sole and exclusive property of Licensor and that Licensee has not acquired and will not acquire any proprietary rights therein by virtue of this Agreement. Notwithstanding the foregoing, this Agreement shall cover also intellectual property rights which are licensed to Licensee within the same limits and under the same terms and conditions of this Agreement and to the extent necessary or useful to the exploitation of the Licensor Channels in accordance with this Agreement.
Licensor agrees and acknowledges, that as between Licensor and Licensee, Licensee’s brands, logos, trademarks, devices or any other similar things identifying or associated with Licensee and/or its offer (“Licensee Marks”) and the goodwill associated therewith are the sole and exclusive property of Licensee and that Licensor has not acquired and will not acquire any proprietary rights therein by virtue of this Agreement.
Licensee shall have the non-exclusive right to use the Licensor Marks in accordance with Licensor’s guidelines as notified in writing to Licensee and solely for the purposes of promoting the Channels and their availability on Licensee subject always to Licensor’s prior written approval.
Licensor shall have the non-exclusive right to use the Licensee Marks in Italy in accordance with Licensee’s guidelines as notified in writing to Licensor and solely for the purposes of promoting the Licensor Channels and their availability on Licensed Service.
No paid advertising will be exhibited on the Licensed Service in, around or in any way associated with the Licensor Channels or the AXN Entertainment section except for the promotion of the Licensed Service, the Licensed Service, Content, Licensor Channel(s) and, subject to Licensor’s ability to advertise on the Licensed Service and other third party channels on the Licensed Service, other films and programs available on the Licensed Service.
All notices to Licensee should be sent in accordance with the Standard Terms and Conditions to:
Licensee: Francesca Grismondi Francesca.Grismondi@h3g.it;
Massimiliano Monda Massimiliano.Monda@H3G.it;
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.
Name: Roberto Forte
Name: Alberto Silva
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.
“Access Fee” shall mean any fee charged by Licensee to Subscribers of its mobile network for browsing(as applicable).
“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.
“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).
“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.
“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.]
“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.
“Security Flaw” shall mean a circumvention or failure of Licensee’s secure distribution system, geofiltering technology or geofiltering facilities.
“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.
“Term” shall mean the Initial Term, together with the period of any extension granted in accordance with the terms and conditions of this Agreement.
“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.
“Territory” shall have the meaning as specified in the Special Terms of the Agreement.
RESERVATION OF RIGHTS
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:
the license granted hereunder may not be assigned, licensed or sublicensed in whole or in part;
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;
no Licensor Channel(s) or Content may be delivered, transmitted or exhibited:
by any means other than as part of the Licensor Channel(s)s on the Licensed Service;
other than in accordance with the Technical Specification (subject to clause 22.3 of Schedule B); [#Subject to digipol further comment]
other than subject to the payment of the relevant subscription fee;
other than via the mobile Network System;
outside of the Territory; or
outside the Term.
retransmission via the Internet, World Wide Web, or similar is expressly excluded (other than preview of content for promotional and marketing purposes);
Licensee shall not market, promote or advertise the Licensed Service outside the Territory; and
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.
The foregoing license shall not permit and the Licensed Service shall not include (i) operating on a negative option basis (i.e., a fee arrangement whereby a consumer is charged alone, or in any combination, a service charge, a separate video-on-demand charge or other charge but is entitled to a reduction or series of reductions thereto on a program-by-program basis if such consumer affirmatively elects not to receive or have available for reception such program) or (ii) the offering of free buys, including, without limitation, “two-for-one” promotions (by coupons, rebate or otherwise) without Licensor’s prior written consent.
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.
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.
PROGRAMMING; NUMBER OF EXHIBITIONS.
All Licensor Channel(s) shall be made continuously available to Subscribers on the Licensed Service during the Term.
All Licensor Channel(s) shall receive due prominence on the Licensed Service consistent with channels of similar genre and appeal.
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.]
CONTENT PROTECTION AND SECURITY.
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.
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]
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.
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).
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.
6.1 Within seventy five (75) days from the end of each two month period during the Term, Licensee will provide Licensor with a statement, showing the prices invoiced or charged to Licensee’s Subscribers for the access to the Services, (including each portion thereof) Within fifteen (15) days following the end of every third month of the Term, Licensee shall provide to Licensor and its designee, if any, a statement in electronic form detailing the information set out in the Special Terms and Conditions for such month together with such other information that Licensor may reasonable request and in any event no less than those provided to any other supplier of content (“Quarterly Report”). [#This needs to be read with the Special Terms – it does not re-state the Special Terms. Provisions re invoicing and payment are detailed in clause 6.]
Licensor shall issue the relevant invoice within the 45th (fortyfifth) day of receiving the statement and shall deliver it to Licensee by Post to the following address: along with any further documents reasonably requested by Licensee. Objections, if any, on the statement shall be sent by Licensor to Licensee by the 5th (fifth) day of receiving it via email. Lack of or delay in sending objections shall involve acceptance of the balance statement. [#There is no deemed approval of invoices.]
The invoices (including COMPANY’s complete bank details) shall be addressed to:
Via Leonardo da Vinci, 1
20090 Trezzano sul Naviglio (MI)
P. IVA: 13378520152
To the attention of:
Amministrazione - Contabilità fornitori
With copy anticipated by e-mail to:
Reports shall be sent by email and overnight mail to:
Kate Marsh email@example.com
Giampaolo Aloisi firstname.lastname@example.org
Mattia Cavanna email@example.com
In the event Licensee develops real-time reporting capabilities, Licensor shall receive direct access to such real-time reports.
PAYMENTS. (note: this should be article n.7)
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:
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.]
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]
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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”).
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.
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]
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.
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.
LICENSOR’S REPRESENTATIONS AND WARRANTIES. Licensor hereby represents and warrants to Licensee that:
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;
The execution and delivery of this Agreement by Licensor has been duly authorized by all necessary corporate action; and
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.
LICENSEE’S REPRESENTATIONS AND WARRANTIES. Licensee hereby represents, warrants and covenants to Licensor that:
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;
The execution and delivery of this Agreement by Licensee has been duly authorized by all necessary corporate action;
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;
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;
The Licensed Service does not infringe any third party intellectual property rights;
No Content shall be transmitted or exhibited except in accordance with the terms and conditions of this Agreement.
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.
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.
In any case in which indemnification is sought hereunder:
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
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.
Licensee Default: In the event that Licensee:
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
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
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:
immediately terminate this Agreement and each license hereunder by giving written notice to Licensee with immediate effect; and
suspend all rights and licenses granted to Licensee under this Agreement in relation to some, all or any of the Licensor Channels; and
require Licensee immediately to cease making the Licensor Channels available.
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.
Licensor Default: Subject to clause 13.414.4,(ref wrong or missing) in the event that Licensor:
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.]
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;
(each of the above acts is hereinafter referred to as a “Licensor Event of Default”) then Licensee may, in addition to any and all other rights which it may have against Licensor, terminate this Agreement and each license hereunder by giving written notice to Licensor, provided that Licensee immediately cease making the Licensor Channels available.
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).