Mobile re-transmission agreement special terms

14. INSURANCE

Without limiting its responsibilities under this Agreement, Licencee shall insure (and continue to maintain insurance) at its own expense, with a reputable insurance company against the risks Supplier is exposed to with regard to all loss of or damage to property and injury to persons (including death) arising out of Licencee obligations, warranties and indemnities under this Agreement and against all actions, claims, demands, costs and expenses in respect thereof.

Without prejudice to Lecencee’s potential liabilities under this Agreement, Licencee shall be obliged to maintain adequate insurance policies in effect to cover its liabilities under this agreement with at least the following coverage:

(i)a third-party civil liability policy covering the Supplier’s liability for personal injury and damage to property, including H3G’s property, with maximum insured amounts per accident and per insured year of no less than €5,000,000.00 (five million euros) and €5,000,000.00 (five million euros) respectively. Such insurance shall (i) operate even in cases of serious negligence or wilful misconduct by persons whose work the Supplier uses in performing the In-Scope Services; (ii) extend to damage caused by suspension and/or interruption of third-party activities, with indemnification limit of no less than €200,000.00 (two hundred thousand euros);

2. 
   a professional-risks insurance policy covering the Supplier’s liability for damage caused by negligence, errors or omissions in performing the Services, with maximum insured amounts per accident and per insured year of no less than €2,500,000.00 (two million five hundred thousand). Such insurance shall operate even in cases of serious negligence or wilful misconduct by persons whose work the Supplier uses in performing the In-Scope Services.
   

All costs and incidental expenses incurred in relation to claims under a policy arising out of matters for which Supplier is responsible under this Agreement will be borne by Supplier. Any deductible or any other amount not covered by the abovementioned insurance shall be borne exclusively by the Supplier.

6. 
   ASSIGNMENT. Licensee shall not assign, transfer or hypothecate its rights hereunder, in whole or in part, whether voluntarily or by operation of law (including, without limitation, by merger, consolidation or change in control) without Licensor’s prior written approval.
   
7. 
   NON-WAIVER OF BREACH; REMEDIES CUMULATIVE. A waiver by either party of any of the terms or conditions of this Agreement shall not, in any instance, be deemed or construed to be a waiver of such terms or conditions for the future or of any subsequent breach thereof. No payment or acceptance thereof pursuant to this Agreement shall operate as a waiver of any provision hereof. All remedies, rights, undertakings, obligations and agreements contained in this Agreement shall be cumulative and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of either party.
   
8. 
   GOVERNING LAW. This Agreement shall be interpreted and construed in accordance with the substantive laws (and not the law of conflicts) of England and Wales with the same force and effect as if fully executed and to be fully performed therein.
   
9. 
   ARBITRATION.
   
   1. 
      All actions or proceedings arising in connection with, touching upon or relating to this Agreement, the breach thereof and/or the scope of the provisions of this Section shall be submitted to The London Court of International Arbitration (“LCIA”) for binding arbitration under its arbitration rules (the “Rules”), to be held in London, UK, before a single arbitrator who shall be a retired judge, in accordance with the relevant laws of England and Wales. The arbitrator shall be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by the LCIA. The arbitration shall be a confidential proceeding, closed to the general public. [Include the following if appropriate to the situation:] [The arbitrator shall assess the cost of the arbitration against the losing party. In addition, the prevailing party in any arbitration or legal proceeding relating to this Agreement shall be entitled to all reasonable expenses (including, without limitation, reasonable attorney’s fees). Notwithstanding the foregoing, the arbitrator may require that such fees be borne in such other manner as the arbitrator determines is required in order for this arbitration clause to be enforceable under applicable law.] The arbitrator shall issue a written opinion stating the essential findings and conclusions upon which the arbitrator’s award is based. The arbitrator shall have the power to enter temporary restraining orders and preliminary and permanent injunctions. Neither party shall be entitled or permitted to commence or maintain any action in a court of law with respect to any matter in dispute until such matter shall have been submitted to arbitration as herein provided and then only for the enforcement of the arbitrator’s award; provided, however, that prior to the appointment of the arbitrator or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief in a court of competent jurisdiction in London, UK, if sought by Licensor, such other court that may have jurisdiction over Licensee, without thereby waiving its right to arbitration of the dispute or controversy under this section. Notwithstanding anything to the contrary herein, Licensee hereby irrevocably waives any right or remedy to seek and/or obtain injunctive or other equitable relief or any order with respect to, and/or to enjoin or restrain or otherwise impair in any manner, the production, distribution, exhibition or other exploitation of any motion picture, production or project related to Licensor, its parents, subsidiaries and affiliates, or the use, publication or dissemination of any advertising in connection with such motion picture, production or project.
      
10. 
    2. The parties hereby waive their right to jury trial with respect to all claims and issues arising under, in connection with, touching upon or relating to this agreement, the breach thereof and/or the scope of the provisions of this section, whether sounding in contract or tort, and including any claim for fraudulent inducement thereof.
    
11. 
    FORCE MAJEURE. Neither party shall in any manner whatsoever be liable or otherwise responsible for any delay or default in or failure of performance resulting from or arising out of or in connection with any Event of Force Majeure, and no such delay, default in or failure of performance shall constitute a breach by either party hereunder. “Event of Force Majeure” shall mean, in respect of a party, any reasonably unforeseeable act, cause, contingency or circumstance beyond the reasonable control of such party, including, without limitation, any governmental action, nationalization, expropriation, confiscation, seizure, allocation, embargo, prohibition of import or export of goods or products, regulation, order or restriction (whether foreign, federal or state), war (whether or not declared), terrorism, civil commotion, disobedience or unrest, insurrection, public or private strike, riot or revolution, fire, flood, drought, other natural calamity, damage or destruction to plant and/or equipment, or any other accident, condition, cause, contingency, circumstance or acts of God, but shall not include an inability to pay for whatever reason.
    
12. 
    HARDSHIP. In the event of the enactment or promulgation of any order, rule, law or judicial or administrative decision by any duly constituted authority in the U.S.A. or in the Territory, which shall impose taxes on the exploitation of film material or restrict or prohibit (or materially affect) payments by Licensor to its supplier or suppliers, or result in the devaluation of currency or impose currency transfer restrictions or exchange controls or other limitations or restrictions relating to taxes, currency transfers or other aspects of operation of the business of distribution of motion pictures which, in the good faith opinion of Licensor make it unprofitable or otherwise undesirable to continue under this Agreement, Licensor may terminate and cancel this Agreement upon thirty (30) days notice. The effect of any such notice and cancellation will be as set forth in clause 13 of this Schedule A. If this Agreement is terminated pursuant to this clause 20 Licensor will credit Licensee with a refundable amount to be negotiated by the parties in good faith.
    
13. 
    CONFIDENTIALITY. Each Party hereby covenants and agrees that, except (a) as may be required by law or pursuant to subpoena or order of any judicial, legislative, executive, regulatory or administrative body, (b) to enforce its rights under this Agreement or (c) for disclosure made by a Party to its parent or affiliated companies or to its financial or legal advisors or its governing board (and such party shall cause such recipient to keep such disclosed information confidential) and as a part of its normal reporting procedure, neither it nor any of its officers, directors, employees or agents shall, directly or indirectly, disclose to any third party or make any public statement or announcement regarding the existence of this Agreement or the terms of this Agreement including, but not limited to, all financial terms and all other terms and conditions of this Agreement, unless, with respect to public statements or announcements, (i) the substance and form of the announcement or statement is agreeable to both Parties and (ii) the Parties agree that such announcement or statement shall be made. In the event that a Party is required to make a disclosure permitted pursuant to clause (a) above, the disclosing Party shall give written notice (in advance of making such disclosure, if possible) to the other Party of the disclosing Party’s applicable disclosure obligation and will use its good faith efforts (in light of the particular circumstances) to seek and obtain confidential treatment of such disclosure and/or to give the non-disclosing Party the opportunity to review and comment upon the form of disclosure. Notwithstanding the foregoing, Licensor shall have the right to disclose this Agreement (including the terms and conditions hereof) to (1) profit participants involved with the Content, and (2) prospective investors in and/or prospective acquirers of all or a portion of (or of the business or assets of) Licensor and/or Licensor’s parent company.
    
14. 
    AUDIT. Licensee shall keep and maintain complete and accurate books of account and records at its principal place of business in connection with each of the Content and Licensor Channel(s) and pertaining to Licensee’s compliance with the terms hereof, including, without limitation, copies of the statements referred to in clause 6 of this Schedule. Licensor (or its designee) shall upon fifteen (15) Business Days notice, have the right during business hours to audit and check at Licensee’s principal place of business, Licensee’s books and records pertaining to the accuracy of the statements and other financial information delivered to Licensor by Licensee and the amount of the license fees paid or payable hereunder. The exercise by Licensor of any right to audit or the acceptance by Licensor of any statement or payment, whether or not the subject of an audit, shall not bar Licensor from thereafter asserting a claim for any balance due, and Licensee shall remain fully liable for any balance due under the terms of this Agreement. If an examination establishes an error in Licensee’s computation of license fees due with respect to the Content and Licensor Channel(s), Licensee shall immediately pay the amount of underpayment, plus interest thereon from the date such payment was originally due at a rate as determined in accordance with clause 6.1. If such error is in excess of 3% of such license fees due for the period covered by such audit, Licensee shall, in addition to making immediate payment of the additional license fees due plus interest in accordance with the previous sentence, pay to Licensor (i) the costs and expenses incurred by Licensor for any audit and (ii) reasonable attorneys’ fees incurred by Licensor in enforcing the collection thereof. In the event that the rate of interest set forth in this Article exceeds the maximum permitted legal interest rate, such rate shall be automatically reduced to the maximum permitted legal interest rate, and all other terms and conditions of this Agreement shall remain in full force and effect. (ok for the procedure of Audit, but we are still waiting for possible comments by related department)
    
15. 
    NOTICES. Except as otherwise expressly provided herein, all notices, statements and other documents desired or required to be given hereunder to Licensor shall be in writing and shall be given by personal delivery, reputable overnight or courier delivery service or facsimile. All notices, statements and other documents shall be sent to:
    

To the address at the top of this Agreement and by fax to +39 02 3707 4028

6. 
   LIMITATION OF LIABILITY. To the maximum extent permitted by applicable law, neither party will under any circumstances be liable for any special, incidental, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or for business interruption arising out of in connection with this agreement, regardless of whether such liability arises in tort, (including negligence), strict liability, breach of contract or breach of warranty, and regardless of whether the relevant party has been advised of the possibility of such damages.
   
7. 
   CAPTIONS/DRAFTING. Clauses or other headings contained in this Agreement are for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. In interpreting the terms and conditions of this Agreement, no presumption shall be interpreted for or against a party as a result of the role of such party or such party’s counsel in the drafting of this Agreement.
   
8. 
   CONFLICTING LAW OR REGULATION. If any provision in this Agreement is determined by a court or arbitrator of competent jurisdiction to be invalid or unenforceable (for any reason, including, without limitation, in connection with “competition” legislation), such determination shall not affect any other provision, each of which shall be construed and enforced as if such invalid or unenforceable provision were not contained herein.
   
9. 
   NO THIRD PARTY BENEFICIARIES. This Agreement is entered into for the express benefit of the parties hereto, their successors and permitted assigns and is not intended and shall not be deemed to create in any other natural person, corporation, company and/or any other entity whatsoever any rights or interest whatsoever, including, without limitation, any right to enforce the terms hereof.
   
10. 
    ENTIRE UNDERSTANDING. This Agreement includes the entire understanding of the parties with respect to the subject matter hereof, and all prior agreements (written or oral) with respect to such subject matter have been merged herein. No representations or warranties have been made other than those expressly provided for herein. This Agreement may not be modified, except by a written instrument signed by the parties, and this provision may not be waived except by written instrument signed by the parties.