schedule a - wikileaks.orgdeals/@content...web viewthe following are the standard terms and...

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SCHEDULE A

STANDARD TERMS AND CONDITIONS FOR BASIC TELEVISION LICENSE AGREEMENT

The following are the standard terms and conditions governing the license set forth in the Basic Television License Agreement to which this Schedule A is attached and by reference made a part thereof.

1. DEFINITIONS.

1.1 The following terms shall have the following meanings when used in this Exhibit and this Agreement. Any terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Basic Television License Agreement.

1.1.1 “Affiliated Institution” means each hotel, motel, inn, lodge, holiday camp, retirement home, hospital, nursing home, hospice and hall of residence at an educational institution located in the Territory that offers programming to its residents for exhibition in non-public viewing rooms by means of a Television Delivery System and that has an agreement with (a) an Affiliated System, pursuant to which agreement such Affiliated System provides such institution with the Licensed Service(s) [(provided that such Affiliated System simultaneously exhibits the Included Programs to Subscribers to the Licensed Service(s) pursuant to the license granted hereunder)]i or (b) Licensee, pursuant to which agreement Licensee provides such institution with the Licensed Service(s) by means of a Television Delivery System.1

1.1.2 [“Affiliated System” means each Television Delivery System located in the Territory that has a valid agreement with Licensee [as set forth at Schedule B]2 or otherwise approved by Licensor in writing pursuant to which (a) Licensee provides such Television Delivery System with the Licensed Service(s) and (b) the Television Delivery System provides the Licensed Service(s) to its Subscribers as a Basic Television service.]3

1.1.3 “Basic Television” means a single linear schedule of programming (a) the signal for which is fully Encrypted and originates and is received4 solely with the Territory, (b) that is delivered by a Television Delivery System together with other program services solely within the Territory5 for non-interactive television viewing simultaneous with such delivery, (c) in respect of which a periodic subscription fee is charged to the viewer in exchange for receiving such program service as part of [one or more of the lowest priced tiers of multiple channel program services available to subscribers, other than Subscription Pay Television services or premium pay television services or tiers of services for which a separately allocable or identifiable program fee is charged;]6 and (d) which program service is [primarily]7 supported by advertisement revenues and sponsorships.8 “Basic Television Service” shall not include any system-optional Subscription Pay Television service (i.e., any Subscription Pay Television service for which a system operator would ordinarily charge a separate fee in addition to the obligatory subscription charge, but which may, in a given system, be included in the obligatory subscription charge).

i NTD – Discuss what the bracketed language was intended to address.

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1.1.4 “Business Day” means any day other than a Saturday or Sunday and any

day on which banks in Los Angeles, California are closed or authorized to be closed.

1.1.5 “Encrypted” means, with respect to a signal, that both the audio and video portions of such signal have been changed, altered or encoded to securely and effectively prevent the intelligible reception of such signal without the use of fully authorized decoding equipment to restore both the audio and video signal integrity.

1.1.6 [“Exhibition Day” means the twenty-four (24) hour period starting at 6 a.m. and ending at 5:59 a.m. the immediately following day, during which Licensee shall have the right to exhibit an Included Program no more than ________ times and not more than once during primetime (i.e., 7p.m. to 11p.m.) (each such exhibition, a “Run”). Any exhibition of any Included Program that begins during an Exhibition Day will be deemed to be completed on that Exhibition Day.]9

1.1.7 “IPTV” or “Internet Protocol Television” means delivery of an Encrypted signal using Internet Protocol technology via a closed, conditional-access system available only to authorized Subscribers of the Licensed Service, and shall not include delivery over the public network known as the Internet or World Wide Web or any comparable system.

1.1.8 “Licensed Service(s)” shall mean the Basic Television service(s) of Licensee specified on the Basic Television License Agreement so long as it (a) is wholly-owned or unilaterally controlled by Licensee and (b) consists of a full schedule of programming that is provided simultaneously by Licensee for delivery directly to subscribers or for exhibition over the facilities of Affiliated Systems for reception on one channel of Subscribers’ home television sets and Affiliated Institutions for reception [on one channel of home type television sets] located in non-public viewing rooms in such Affiliated Institutions in the Territory.

1.1.9 “Loss” or “Losses” means any and all losses, liabilities, actions, causes of action, costs, damages or expenses (including interest, penalties, reasonable attorneys’, consultants’ and experts’ fees and expenses and all amounts paid in investigation, defense or settlement of any of the foregoing).

1.1.10 [“North American Box Office” with respect to an Included Program means the highest aggregate United States and Canadian gross box office receipts earned by such film, as reported in Daily Variety or The Hollywood Reporter. If Licensor believes that the latest of such reports is not the most current number of such receipts, it shall have the right to provide a certificate setting forth the correct amount.] 10

1.1.11 “Qualifying Content Provider” means CBS, Paramount Pictures, Twentieth Century Fox, Universal Studios, [Metro-Goldwyn-Mayer], DreamWorks SKG, The Walt Disney Company and Warner Bros., and any of their respective affiliates and subsidiaries [licensing basic television rights in the Territory].11

1.1.12 “Subscriber(s)” means (a) a private residential home or other dwelling unit, or a private home on a military base, the residents or owners of which have elected to receive, and have been authorized by Licensee to receive the Licensed Service(s); and (b) individual dwelling units in a single residential apartment building or residential apartment

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complex under common ownership or control, which building or complex has elected the option to receive, and has been authorized by Licensee to receive, the Licensed Service(s).

1.1.13 “Subscription Pay Television” shall mean a fully Encrypted schedule of programming, (a) the signal for which originates in the Territory, (b) that is provided by a Television Delivery System (or a supplier to a Television Delivery System for provision) to subscribers located solely within the Territory for television viewing simultaneously with the delivery of such programming, and (c) for which the subscriber is charged a separately allocable or identifiable premium fee for the privilege of viewing such service in addition to any charges for Basic Television services or other similar services or in a bundle with a tier of television service above a Basic Television service.

1.1.14 “Television Delivery System” means a system that delivers a television signal by means of cable television, Business Radio Service, SMATV, DTH, DTT, [or] VDSL/ADSL/DSL/FTTH [or] [IPTV], provided, however, that a Television Delivery System shall in no event mean a system that delivers a television signal by means of an interactive or “on-line” delivery system such as the Internet/World Wide Web (or any comparable system) or a system that is accessible from a website or other publicly accessible Internet-based resource or any mobile delivery system (including DVB-H and DVB-T).12

1.1.15 “Territory” means the countries which are listed on the Television License Agreement or the attached schedules as their political boundaries exist as of the effective date of this Agreement, subject to such trade restrictions which may be in force or may come into force during or after the Term in which event the country subject to such trade restriction shall be deemed automatically removed from the definition of “Territory”. If during the term of this Agreement, an area separates from a country in the Territory or an area is annexed to a country in the Territory, then, at Licensor’s option and subject in all events to the rights of third parties, the Territory shall either (a) not include such separated or annexed area or (b) include such annexed or separated area.

1.2 Cross-Reference of Other Definitions . Each capitalized term listed below is defined in the corresponding Section of this Schedule A13:

Definition Section

[AAA] [23]

[ADR Services] [23]

Advertising Materials 14.1

Arbitral Board 23

Appellate Arbitrators 23.2

Author’s Rights 17.2

Claims

Collecting Societies 17.2

Collectively Administered Author’s Rights 17.2

3

TWright4, 05/25/11,

What is this? Wikipedia tells me at http://en.wikipedia.org/wiki/Business_band that Business Radio Services are business only services in frequency bands reserved for business use only. I would say delete it.

Spencer Stephens, 05/26/11,

Enumeration is a good idea but we should not convey it’s a complete list.

TWright4, 05/25/11,

DVB-T is Digital Terrestrial TV and its not mobile. But you could add instead “DMB, DVB-DH and DVB-NGH” instead

TWright4, 05/25/11,

I think the key thing about “over the top” and other non-IPTV system is not how they are delivered but what they are delivered from and to whom. Anyone can access a website whereas only subscribers of a particular IPTV service with the right equipment in the home can get an IPTV service

TWright4, 05/25/11,

We should delete this part, plenty of IPTV systems will be interactive

TWright4, 05/25/11,

We should add Digital Terrestrial Television in

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Definition Section

Payments

Confidential Information 27

Copy or Copies 10.1

Event of Force Majeure 25

[FCPA] [29]

[ICC] [23]

[JAMS] [23]

License Period 5.1

Licensee Event of Default 19.1

Licensee Indemnified Parties 18.1

Licensee Termination Event 19.1

Licensor Event of Default 19.2

Licensor Indemnified Parties 18.2

Names and Likenesses 14.3

[Prime Rate] [8.1]

Proceeding 23

Reporting Month 9.1

Rules 23

Security Systems 11

Third Party Exclusion Right 20

[Withholding Tax Receipts] [_]

2. LICENSE. Subject to the payment of the License Fee, and the due performance by Licensee of its obligations hereunder, and provided that Licensee is not in material breach of its obligations hereunder, Licensor hereby grants to Licensee, a limited, non-exclusive license (except as otherwise specified in the Basic Television License Agreement) to exhibit each Included Program by way of Basic Television solely over the Licensed Service(s) in the Territory in the Licensed Language during its License Period, and Licensee shall so license from Licensor such right. Licensee shall exhibit each Program in its entirety. Such exhibition shall be solely on the Licensed Service(s) either directly to Subscribers or to Affiliated Systems and Affiliated Institutions.

3. RESTRICTIONS ON LICENSE.

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3.1 Licensee agrees that, without the specific written consent of Licensor: (a) the license

hereunder does not grant any right to Licensee to exhibit or authorize the exhibition of the Included Programs as part of or together with any non-optional premium pay or Subscription Pay Television service for which the subscriber must pay a fee to receive such premium pay or Subscription Pay Television service, regardless of whether the fee charged therefor is included in the fee to receive Basic Television services or to charge a fee for the Licensed Service(s) in addition to (either separate from or included in) any charges for Basic Television; (b) the license granted hereunder may not be assigned, licensed or sublicensed in whole or in part; (c) no Included Program may be delivered, transmitted, exhibited or authorized for reception other than as expressly set forth in the Basic Television License Agreement; (d) no person or entity shall be authorized or permitted by Licensee to do any of the acts forbidden herein; (e) no Included Program may be delivered, transmitted, exhibited or authorized for reception in any common area, lobbies or hallways of any Affiliated Institutions or in places where an admission fee is charged or in any places of public accommodation, access or use including bars, lounges, restaurants or common areas, nor may any Included Program be physically delivered for playback in a home or dwelling unit or in a room of an Affiliated Institution; [and] (f) no Included Program may delivered, transmitted, exhibited or authorized for reception where the originating or intermediary source of transmission is free broadcast television; [and (g) Licensee shall not have the right to transmit, exhibit or deliver the Included Programs in a high definition, up-converted or analogous format or in a low resolution, down-converted format].1415

3.2 Shared Channel. Where there is more than one Basic Television service on a single channel, each such service shall be considered a separate channel. In no event shall Licensee be entitled to exhibit an Included Program pursuant to the licenses granted in this Agreement for reception on more than one channel (or more than one service of a shared channel) of the television set of a subscriber or located in a room in an Affiliated Institution.16

3.3 Titles of Programs. Licensor reserves the right to change the title of any Included Program licensed under this Agreement and Licensee shall advise the Licensor in writing of the local language translation of any title (including any individual episode title) under which the Included Program is exhibited.

4. RESERVATION OF RIGHTS. All licenses, rights and interest in, to and with respect to the Included Programs, Advertising Materials and related materials, and the elements and parts thereof, and the media of exhibition and exploitation thereof, not specifically granted herein to Licensee, including pay-per-view, video-on-demand, electronic sell-through, manufacture-on-demand, near video-on-demand, subscription video-on-demand, free broadcast television and home video, shall be and are specifically and entirely reserved by and for Licensor and may be fully exploited by Licensor without limitation or holdback of any kind. The license shall be non-exclusive except as set forth in the Basic Television License Agreement.

5. TERM/LICENSE PERIOD; NUMBER OF EXHIBITIONS.

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5.1 Term/License Period . Unless otherwise set forth in the Basic Television License

Agreement or schedules attached hereto, the “License Period” with respect to each Included Program commences on its Availability Date as set forth in the Basic Television License Agreement or the attached schedules and terminates with respect to each Included Program on the earlier of (a) the expiration of the time period specified on the Basic Television License Agreement or the attached schedules and (b) the date on which Licensee has exhibited a Program the Maximum Permitted Number of Exhibitions or on the Maximum Permitted Number of Exhibition Days, as applicable, each as specified on the Television License Agreement or the attached schedules. Failure by Licensee to complete the Maximum Permitted Number of Exhibitions or, if applicable, the Maximum Permitted Number of Exhibition Days on or before the expiration of the License Period of the license granted herein shall not serve to extend the License Period (or the Term) of this Agreement. No portion of any Included Program shall be exhibited after the expiration of the License Period for such Included Program. The Term of this Agreement means the period commencing on the date hereof and continuing until the last day of the License Period for the Included Program last to expire hereunder. The termination or expiration of the Term or any License Period, howsoever occasioned, shall not affect any of the provisions of this Agreement which are expressly or by implication to come into or to continue in force after such termination or expiration.

5.2 Exhibitions/Exhibition Days . The Maximum Permitted Number of Exhibitions and, if applicable, the Maximum Permitted Number of Exhibition Days and Maximum Permitted Number of Exhibitions per Exhibition Day of each Included Program is as set forth in the Television License Agreement or the attached schedules. During the License Period with respect to each Program, such Program shall be exhibited by Licensee for no more than the Maximum Permitted Number of Exhibitions or, if applicable, on no more than the Maximum Permitted Number of Exhibition Days for no more than the Maximum Permitted Number of Exhibitions per Exhibition Day, as specified on the Television License Agreement or the attached schedules.

6. WITHDRAWAL OF PROGRAMS. Licensor may withdraw any Included Program and/or related materials (including Advertising Materials) at any time if (a) Licensor reasonably believes that it does not have,17 or no longer has, or there is actual or threatened litigation, judicial proceeding or regulatory proceeding regarding, the rights necessary to authorize Licensee to distribute Included Programs as provided herein; or in an Event of Force Majeure, or unavailability of necessary materials, or for a Blu-ray or DVD moratorium, or in order to minimize the risk of liability; (b) Licensor reasonably believes that Licensee’s continued distribution of Included Programs and/or related materials and Advertising Materials, as applicable, will violate the terms of any of Licensor’s agreements with, or may adversely affect Licensor’s material relationships with, any applicable copyright owner, artist, composer, producer, director, publisher, distributor or similar third party rights holder; or (c) upon thirty (30) days’ prior written notice, Licensor, or an affiliate of Licensor, elects to re-release or reissue such Included Program or to make a theatrical, direct-to-video or television remake, sequel or prequel of such Included Program. Licensor shall notify Licensee of such withdrawal as soon as reasonably practical after Licensor determines or receives notice of the need for such withdrawal [, except as otherwise expressly set forth in this Article 6]18. [Withdrawal of an Included Program

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and related materials (including Advertising Materials) under this Article 5, shall in no event be deemed to be, or in any way constitute a breach of this Agreement and Licensee shall not be entitled to any rights or remedies as a result of such withdrawal including any right to recover for lost profits or interruption of its business.]1920

7. LICENSE FEES. Licensee shall pay the License Fee stipulated in the Basic Television License Agreement or the schedules attached hereto in consideration of the grant herein made by Licensor of the right and license to exhibit the Programs. The License Fee shall be payable by Licensee in its entirety regardless of whether or the extent to which any one or more of the Included Programs is actually exhibited by Licensee. The License Fee shall be payable by Licensee to Licensor in accordance with the schedule set forth under the “Payment Terms” section of the Basic Television License Agreement or the attached schedules. If it is specified in the Basic Television License Agreement or the attached schedules that Licensee may pay the License Fee in installments, such permission to pay in installments shall be deemed rescinded and the entire unpaid balance of the License Fee will become immediately due and payable without further notice to Licensee if a Licensee Event of Default occurs with respect to the timely payment of any installment of the License Fee.

8. PAYMENT AND TAXES; CURRENCY.

8.1 Unless and until Licensee is otherwise notified by Licensor, all amounts due and payable to Licensor shall be made in [INSERT CURRENCY]21 either by (a) wire transfer to the following account: [Insert account number]; Account Name: _________________________; or (b) by corporate check sent to Licensor in immediately available funds as follows: (1) by mail: [Insert Address]; or (2) by overnight mail or courier service: [Insert Lockbox number/Address]. Each payment shall be accompanied by a reference to the name of Licensee [and the Contract Number OR Reference: _____].2223

8.2 Amounts which become due to Licensor hereunder (including any license fees, advances or guarantee payments) are immediately due and shall upon payment be immediately be non-recoupable, non-refundable and not subject to rebate, deduction or offset of any kind. 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, interest shall accrue on any such overdue amount until such time as the overdue amount (including accrued and unpaid interest) is paid in full, at a rate equal to the lesser of (x) one hundred ten percent (110%) of the [prime rate announced from time to time in the U.S. edition of the Wall Street Journal (the “Prime Rate”)] 24 and (y) the permitted maximum legal rate.

8.3 25 Licensee hereby covenants and agrees that all payments made by Licensee under this Agreement shall be made without any deduction or withholding for or on account of any tax (specifically withholding tax and including but not limited to sales, use, receipts, excise, value added or other taxes, however denominated), duty or other charges of whatever nature including but not limited to quotas, licenses, contingents, import permits, consulate fees, county clerk and notary charges, state, county, city or other taxes howsoever denominated relating to or imposed upon license fees, rentals, negatives, copies or other material, or the right or privilege to use the same in connection with any Included Program licensed hereunder and whether imposed upon or

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levied on or in connection with the importation of any material supplied by Licensor hereunder, or incurred in connection with the legal processing of this document for or in the Territory, or otherwise imposed by any statute, law, rule or regulation now in effect or hereafter enacted. If Licensee is or was required by law to make any such deduction or withholding from any payment due hereunder to Licensor, then, notwithstanding anything to the contrary contained in this Agreement, the gross amount payable by Licensee to Licensor will be increased so that, after any such deduction or withholding, the net amount received by Licensor will not be less than Licensor would have received had no such deduction or withholding been required.

8.4 Reimbursement . Licensee shall reimburse Licensor on demand for Licensor's payment of any taxes, levies or charges (including penalties and interest thereon but excluding taxes on the License Fees which constitute income (but not withholding) or franchise taxes imposed on or levied against Licensor under this Agreement). If Licensee fails to reimburse Licensor, Licensor shall have available to it all of the remedies provided for herein with respect to unpaid License Fees, as well as such other remedies as may be provided by law for the collection thereof.

8.5 Common Currency/Devaluation .

8.5.1 If the License Fees payable under this Agreement are denominated in any currency other than U.S. dollars and Licensee becomes subject to the common European currency currently contemplated to be known as the “Euro” or its successor currency and is required to pay License Fees in such common currency, then the License Fees payable hereunder shall be payable in such common currency using the conversion rate in effect as of the date that the Licensee becomes subject to such common currency (and shall remain subject to further adjustment as and to the extent that the provisions of Section 8.5.2 shall become applicable).

8.5.2 The following shall be applicable only if the License Fee payable hereunder is payable in other than U.S. Dollars or in the event that payment is made under the provisions of Article 28. The License Fee payable hereunder was calculated on the date set forth on the Basic Television License Agreement at the so called “free market” or “open market” rate of exchange then prevailing (unless no such free or open market rate of exchange legally exists in the Territory, in which event the “official” rate was utilized), herein the “rate of exchange.” In the event that the rate of exchange should change at any time during the Term so as to increase the value of the U.S. Dollar in relation to the currency in which the License Fee is payable, then as a result of such devaluation of such currency any portion of the License Fee not theretofore paid will be adjusted so that such unpaid amount after conversion into U.S. Dollars shall equal that amount which would have been received hereunder had there been no such devaluation.

9. REPORTING AND AUDIT.

9.1 Monthly Reports .26 With respect to each month of the Term, until the last month of the latest expiring License Period under this Agreement, Licensee shall deliver to Licensor a statement (in a form approved by Licensor) for such month (“Reporting Month”) within thirty (30) days following the conclusion of such Reporting Month showing in reasonable detail for

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each Included Program exhibited by Licensee during such Reporting Month at least the following information: (a) the dates and times of each exhibition or, if applicable, Exhibition Day of such Included Program (or episode thereof) for the Reporting Month and the Licensed Service(s) on which it is exhibited; (b) with respect to each Included Program for which the License Period expired during such Reporting Month, the total number of used and unused exhibitions or, if applicable, Exhibition Days of such Included Program during its License Period; (c) if Licensee has translated or changed the title into the Licensed Language, such translated or changed title and the actual English language title of such Included Program; and (d) such other information as Licensor may reasonably request.

9.2 Additional Quarterly Reports. within thirty (30) days following Licensee’s receipt of Licensor’s request for a report on any calendar quarter during which any Included Program is exhibited pursuant to the licenses granted in this Agreement, Licensee shall furnish a report showing (through the end of each calendar quarter): (a) with respect to Affiliated Systems or Affiliated Institutions which have become such in the preceding calendar quarter: (i) its name and, if then known to Licensee, ownership; (ii) its location; and (iii) transmission mode, (b) the aggregate number of Affiliated Systems and Affiliated Institutions that receive the Licensed Service(s) in each country of the Territory (calculated on a country-by-country basis, if applicable) and (c) the Affiliated Systems and Affiliated Institutions that have elected to cease receiving the Licensed Service(s) during the preceding calendar quarter.

9.3 Program Schedules. So long as Licensee is licensed to exhibit any of the Included Programs under this Agreement, Licensee shall deliver to Licensor copies of any program schedules or guides (including those delivered by electronic means, if any) for the Licensed Service(s) as soon as reasonably feasible, but in no event later than the earlier of (a) publication or (b) such time as such schedules are first mailed or otherwise made available to Subscribers.27

9.4 Reporting. At Licensor’s election, Licensor may appoint a third party designee to receive or access the data required to be provided pursuant to this Section 9 for purposes of reorganizing or presenting such data as requested by Licensor provided that any such designee agrees to keep such information confidential. All reports and other information provided by Licensor to Licensee pursuant to this Section 9 shall be in writing and delivered via e-mail to Licensor to the address specified by Licensor or via such other method of delivery as Licensor may hereafter specify in writing.

9.5 Audit. Licensee shall keep and maintain at all times true and complete records and books of account together with all other information relevant to the Included Programs, the provisions of this Agreement and Licensee’s compliance with the terms hereof.28 Licensor or its designee shall have the right at any time during or after the Term,29 upon reasonable written notice to Licensee, during business hours to audit, check and copy, at Licensee’s principal place of business, Licensee’s books and records, including relevant electronic data and systems data, pertaining to Licensee’s compliance with the terms hereof, the accuracy of the statements and reports delivered to Licensor by Licensee pursuant to this Agreement, and the amount of the License Fees due or payable hereunder and to ensure compliance with the Basic Television License Agreement. In addition, Licensee shall cause its Affiliated Institutions [and Affiliated

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Systems] to permit Licensor to audit, check and copy, at such entities’ respective principal places of business, their books and records pertaining to the accuracy of the statements and reports delivered to Licensor by Licensee.30 If any such audit reveals an error with respect to any item bearing upon the License Fees due or payable to Licensor, Licensee shall re-compute and make immediate payment of the License Fees due under this Agreement, together with interest thereon, compounded monthly from the date on which such License Fees shall have first been due and payable hereunder, at a rate equal to the lesser of (i) 110% of the [Prime Rate] and (ii) the maximum rate permitted by applicable law. Additionally, in the event that the actual License Fees due under this Agreement for any period exceed the License Fees reported by Licensee to be due for such period by 5% or more,31 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 (a) all costs and expenses incurred by Licensor for the review and audit in respect of such period, and (b) attorneys’ fees32 incurred by Licensor in enforcing the collection thereof. The exercise by Licensor of any right to check, copy or to audit at any time(s) or the acceptance by Licensor of any statement or payment, shall be without prejudice to any of Licensor’s rights or remedies and shall not bar Licensor from thereafter disputing the accuracy of any such payment or statement, and Licensee shall remain fully liable for any balance due under the terms of this Agreement.

10. PHYSICAL MATERIALS; DUBBING AND SUB-TITLING.

10.1 Licensor shall make available to Licensee at Licensee’s expense at least thirty (30) days prior to the Availability Date for each Included Program, at Licensor’s election, a videotape or encoded file (the “Copy” or “Copies” as applicable).33 Licensee shall inspect such Copies promptly for technical quality and shall notify Licensor within thirty (30) days of delivery if, in Licensee’s reasonable judgment, such materials fail to meet reasonable customary standards of technical quality for Basic Television services in the Territory, together with a reasonably detailed description (including timecode location) of the reasons for such failure. Any Copies delivered to Licensee and not objected to by Licensee within thirty (30) days of receipt shall be deemed to have been accepted. In the event Licensor elects to make available to Licensee a videotape Copy of an Included Program, encoding shall take place at a post-production house approved by Licensor and with such encoding quality subject to Licensor’s approval. All costs incurred by Licensee directly with respect to delivery of the Included Programs (e.g., lab access fees, insurance, taxes and shipping) as well as any costs incurred by Licensor for creating Copies and dubbing and/or subtitling the Included Programs into a Licensed Language shall be borne by Licensee.34 Licensee agrees that with respect to each Included Program licensed hereunder it will obtain all Copies and related materials from Licensor or a Licensor-approved laboratory, only.

10.2 If any Copy is lost, stolen, destroyed or damaged after delivery by Licensor to a shipping agent and before arrival at such destination specified by Licensee or the attached schedules, Licensee shall give to Licensor an affidavit of one of its officers certifying such loss, theft, destruction, or damage and all details known to Licensee relating to such occurrence.

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Licensor shall, upon notification of such occurrence, deliver a replacement Copy to Licensee at Licensee’s sole expense.

10.3 All materials with respect to each Included Program licensed hereunder, including Copies, Advertising Materials and dubbed and/or subtitled versions (whether created or commissioned by Licensor or Licensee) of the Included Programs licensed hereunder shall be the sole property of Licensor. Promptly after the License Period for such Included Program has terminated (but in no event later than thirty (30) days thereafter), Licensee shall at Licensor’s election either (a) return all Copies of such Included Program to Licensor or its designee in the same condition originally provided by Licensor to Licensee (reasonable wear and tear excepted) or (b) erase or degauss all such Copies and supply Licensor with a certification of erasure or degaussing of such promptly after the License Period for such Included Program has terminated (but in no event later than 30 days thereafter). Licensee acknowledges and agrees that its use of the Copies, Advertising Materials, Included Programs and any dubbed and subtitled versions of the Included Programs (whether created or commissioned by Licensee or Licensor) is limited strictly to the terms of the license(s) granted herein and Licensee is not granted and is not acquiring any ownership rights in or of, or interest in, any Copies, Advertising Materials, Included Program or dubbed or subtitled version of an Included Program (whether created or commissioned by Licensee or Licensor). Licensee shall not copy, duplicate, sublicense or part with any Copy except as expressly permitted hereunder and shall use best efforts to prevent any loss or theft and unauthorized use, copying or duplication by others of any Included Program. Licensee shall abide by all third party contractual obligations of which Licensor gives Licensee written notice in connection with the Included Programs and/or the Copies and Licensee shall not permit any lien, charge, pledge, mortgage or other encumbrance to attach to any rights to exploit the Included Programs, the Copies, Advertising Materials and dubbed and/or subtitled and/or [encoded] versions on the Included Programs granted under this Agreement.

10.4 In no event shall Licensor be required to deliver Copies in any language version other than the original language version unless otherwise specified in the Basic Television License Agreement.

10.5 [Dubbing; Subtitling.]

10.5.1 If Licensor has available out of stock on-hand a dubbed or subtitled version (if dubbed or subtitled version rights are included in the license hereunder as reflected in the “Licensed Language” section of the Basic Television License Agreement) of an Included Program in the Licensed Language, Licensor shall provide such materials to Licensee at Licensee’s cost. If Licensor is unable to provide all materials for a dubbed or subtitled version (if dubbed or subtitled version rights are included in the license hereunder as reflected in the “Licensed Language” section of the Basic Television License Agreement) of an Included Program licensed hereunder to Licensee out of available stock on-hand, Licensor shall have the right to create such dubbed or subtitled version in the Licensed Language and provide copies of such materials, in each case at Licensee’s sole cost. If Licensor elects not to create such a version, Licensee may, only with the prior written consent of Licensor, and only in strict accordance with all third party contractual restrictions and Licensor’s technical specifications, prepare dubbed or subtitled versions (if dubbed or subtitled version rights are included in the

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license hereunder as reflected in the “Licensed Language” section of the Basic Television License Agreement) of such Included Program in the Licensed Language, which versions shall be sufficient to cover Licensor’s worldwide usage of such dubbed or subtitled versions in all media throughout the universe, the costs (including any third party contractual obligations, residuals and other reuse fees) for which shall be the sole responsibility of Licensee; provided, however, that (i) immediately upon Licensee’s completion of the original dubbing or subtitling of an Included Program licensed hereunder, Licensee shall forward to Licensor a copy of such originally dubbed or subtitled version, and (ii) Licensee shall allow Licensor unrestricted access, [at no charge to Licensor, to the masters of the dubbed and/or subtitled versions during such Included Program’s License Period]. 35 Following the conclusion of the License Period for any Included Program licensed hereunder or any other termination of this Agreement, Licensee shall deliver to Licensor the master and all copies of all dubbed and subtitled versions of such Included Program. In connection with the creation of any dubbed or subtitled version, Licensee shall be responsible for obtaining all necessary third party clearances such that any subsequent use of such materials by Licensor or its designee shall be free and clear of any residual or reuse fees.

10.5.2 All rights, including copyrights and trademarks, in such dubbed and subtitled versions of the Included Programs licensed hereunder, shall vest in Licensor upon creation thereof, subject only to the rights granted herein to Licensee hereunder during the Term hereof. Licensee acknowledges and agrees that Licensee is not granted and is not acquiring any ownership rights in or of, or interest in, any Copy, Included Program or dubbed or subtitled version of an Included Program by reason of Licensee’s permitted use or manufacture thereof. Licensee will execute, acknowledge and deliver to Licensor any instruments of transfer, conveyance or assignment in or to any dubbed and subtitled versions necessary or desirable to evidence or effectuate Licensor’s ownership thereof and in the event that Licensee fails or refuses to execute, acknowledge or deliver any such instrument or documents then Licensor shall be deemed to be, and Licensee hereby nominates, constitutes and appoints Licensor its true and lawful attorney-in-fact irrevocably to execute and deliver all such instruments in Licensee’s name or otherwise, it being acknowledged that such power is a power coupled with an interest.

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11. CONTENT PROTECTION AND SECURITY. During the License Period for each Included Program, (a) Licensee’s transmitting facilities shall be capable of individually addressing subscribers on an Included Program by Included Program/decoder by decoder basis (with the capability of enabling and disenabling individual decoders to receive the Included Programs and canceling stolen decoders), (b) technologically adequate video and audio programming, whether single-channel or multi-channel, shall be Encrypted via a randomly changing key to the encryption system and (c) the security shall be such that possession of an unauthorized decoder which remained uncancelled would not permit access to the encoded information, (d) to the greatest extent possible, the content protection system shall be renewable and allow for remote update of end user devices should this be required to improve security, and . Licensee shall (x) employ up-to-date, state-of-the-art security systems and procedures (including insurance coverage) designed to prevent theft, piracy, unauthorized exhibitions and reception, copying or duplication of the Licensed Service(s), the Included Programs or any materials supplied by Licensor (y) comply with the requirements set forth in the content protection schedules attached hereto with respect to all Included Programs transmitted on the Licensed Services and (z) comply with all reasonable instructions in this regard given by Licensor and/or its authorized representatives and/or nominees, it being understood that such instructions will only be given in exceptional circumstances where Licensor has reasonable grounds for believing Licensee systems are deficient from a content protection and security point of view. Licensor (or its representatives) shall have the right to inspect and review Licensee’s systems, provided that such inspection and review is conducted during reasonable business hours. Notwithstanding the foregoing, (i) no such anti-theft, anti-piracy, encryption, anti-copying or anti-duplication or other security systems and procedures used by Licensee at any time (the “Security Systems”) with respect to any Licensed Service shall be less effective than the systems and procedures then used by any other basic television service 36in the Territory and (ii) no Security Systems used with respect to any Included Program shall at any time be less effective than those then required by, or used at the request of, any other of Licensee’s program suppliers.

12. CUTTING, EDITING AND INTERRUPTION. Licensee shall exhibit each Included Program as delivered by Licensor in its entirety in the form authorized by Licensor. Subject to Licensor’s prior written consent, Licensee may (a) make such minor cuts, edits or alterations at its own expense, as are necessary to conform to the time segment requirements of the Licensed Service(s) or to the orders of any duly authorized public censorship authority37 and (b) insert commercial material at appropriate time intervals during the exhibition of the Included Program. Notwithstanding the foregoing, in no event shall Licensee make any cuts, edits or alterations that would (i) adversely affect the artistic, narrative or pictorial quality of any Included Program, (ii) materially interfere with its continuity or (iii) breach any of Licensor’s third party contractual restrictions without Licensor’s prior written consent and Licensor’s approval of the final edited version; provided however, that Licensor shall be given the first opportunity to make any such cuts, edits or alterations. Under no circumstances shall Licensee delete any copyright or trademark notice or credits incorporated in the Included Programs as delivered by Licensor or delete or substitute any music contained in any Included Program. Unless the Copy is degaussed or destroyed, Licensee shall replace such minor cuts and alterations and delete such commercial

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TWright4, 05/25/11,

Again we are often asked for this and often give it, and this is also how it is – we really would only give instructions in exceptional circumstances so let’s give our partners some comfort and say that.


I don’t think that we should concede that point without the potential licensor objecting to it first.

TWright4, 05/25/11,

We often add this and I think we should always be willing to be reasonable!


I don’t agree with adding “designed”. I don’t feel the word is strong enough and there’s nothing in this agreement that says it has to be 100% effective.

TWright4, 05/25/11,

We often are asked to add “designed” here and we often agree to it and I think it’s a fair and good addition – system cannot guarantee theft and piracy don’t occur.


I don’t understand what Tim means by “in the main body”

TWright4, 05/25/11,

Remote update is very important so I think should be in the main body now


I would leave it in.

TWright4, 05/25/11,

I would say delete this part as well

TWright4, 05/25/11,

You can delete this bit, if the transmissions is not susceptible to encryption, e.g. if its analogue, then they can tell us about it specifically

TWright4, 05/25/11,

We don’t need the Program by Program capability for Basic TV

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material in order that the Copy shall be returned to Licensor in the same condition as delivered, other than reasonable wear and tear due to proper use. Licensee shall not copy, duplicate, sub license or transfer possession of any Copy except to return same to Licensor or as authorized hereunder. Licensee acknowledges and agrees that Licensee is not granted and is not acquiring any ownership rights in or of, or interest in, any Copy, Included Program or cut or edited version of an Included Program by reason of Licensee’s permitted use or manufacture thereof. Licensee will execute, acknowledge and deliver to Licensor any instruments of transfer, conveyance or assignment in or to any cut or edited versions necessary or desirable to evidence or effectuate Licensor’s ownership thereof and in the event that Licensee fails or refuses to execute, acknowledge or deliver any such instrument or documents then Licensor shall be deemed to be, and Licensee hereby nominates, constitutes and appoints Licensor its true and lawful attorney in fact irrevocably to execute and deliver all such instruments in Licensee’s name or otherwise, it being acknowledged that such power is a power coupled with an interest.

13. RETRANSMISSION. As between Licensor and Licensee, Licensor is the owner of all rights of (i) retransmission and (ii) transmissions by any third party of, in and to the Included Programs, using any platform, and by any method or means, linear or non-linear, including without limitation, retransmission or transmission by an ISP, the Internet, telephone communication, terrestrial broadcast, cable, satellite and IPTV. In addition, Licensor retains and controls all rights to claim or receive any and all remuneration with respect to any such transmission or retransmission as well as remuneration with respect to any exception to and/or limitation of Licensor’s reproduction rights, including without limitation any private copy or blank tape levy. Further, Licensee shall have no right to record or to authorize the recording of the Included Programs except only for ephemeral recordings necessary for the performance of the rights granted under this Agreement.38 If for any reason, License collects royalties relating to the retransmission of the Included Programs, such collection shall be made solely on the behalf of the Licensor, and Licensee shall immediately pay over such royalties to Licensor (i) without deduction of any kind and (ii) in addition to any License Fees, advances or costs payable to Licensor.

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14. ADVERTISING AND PROMOTION.

14.1 Subject to the provisions of this Article 14, Licensee shall have the right to advertise, publicize and promote, or authorize the advertising, publicity and promotion of the exhibition of any Included Program on the Licensed Service in the Territory and use, or authorize the use of, the written summaries, extracts, synopses, photographs, trailers or other materials prepared and made available by Licensor or, if not prepared by Licensor, approved in writing in advance by Licensor (“Advertising Materials”), for the sole purpose of advertising, promoting and publicizing the exhibition of the Included Programs on the Licensed Service in the Territory (as distinguished from advertising and publicizing the Licensed Service(s) itself or any other product or service). The rights to advertise, publicize and promote the exhibition of the Included Program on the Licensed Service(s) as expressly set forth and limited in this Article 14 may be exercised by any means or media, but specifically excludes the right to create or disseminate items of merchandise, whether given away or sold, which include any reference to the Included Program, to Licensor, or to any person or entity involved in the creation of such Included Program. Any advertising, publication or promotion of the exhibition of the Included Program on an interactive or on-line delivery system such as the Internet or any comparable or similar system is subject to the terms and conditions of the Internet and Email Promotion Policy attached hereto or other written consent of Licensor.

14.2 Licensee shall not advertise, promote, publicize or otherwise announce any Program or the exhibition thereof on the Licensed Service(s) by means of television or any other means or media prior to thirty (30) days before its Availability Date.39 Licensee shall not advertise, publicize, exploit or promote any Included Program after the expiration of the License Period for such Included Program.

14.3 Licensee covenants that (i) it shall fully comply with any and all instructions furnished in writing to Licensee with respect to the Advertising Materials; (ii) it shall not make any changes to the Advertising Materials without Licensor’s prior written consent; (iii) names, images, voices and likenesses of the characters, persons and other entities appearing in, connected with the production of Included Programs or any trademark used in connection with an Included Program (“Names and Likenesses”) shall not be used separate and apart from the Advertising Materials; and (iv) it will not use Advertising Materials, Names and Likenesses, Licensor’s name or logo, and Included Programs so as to constitute an endorsement or testimonial, express or implied, of any party, product or service, including the Licensed Service, Licensee, or any service provided by Licensee; nor as part of a commercial tie-in. Any advertising or promotional material created by Licensee, any promotional contests or giveaways to be conducted by Licensee and any sponsorship of any Included Program (as distinguished from the standard practice of selling commercial advertising time) shall require the prior written consent of Licensor and shall be conducted only in accordance with Licensor’s written instructions.

14.4 The rights granted in this Article 14 shall be subject to, and Licensee shall comply with, any and all restrictions or regulations of any applicable guild or union with respect to the advertising and credits of the Included Program as Licensor may advise Licensee.

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14.5 In no event shall Licensee be permitted to use, or authorize others to use, any

excerpts from an Included Program other than as provided by Licensor and (a) in no case in excess of two minutes (or such shorter period as Licensor may notify Licensee from time-to-time) in the case of a single continuous sequence, or four minutes in the aggregate from any single Included Program (or such shorter period as Licensor may notify Licensee from time to time); (b) such excerpts shall include only series regulars of such Included Program if such Included Program is a television series, (c) Licensee will obtain clearances of all music rights for music used in such excerpts at its own expense, and (d) any use of any excerpts of such Included Program shall be subject to the various limitations and restrictions contained in the contracts that Licensor has with third parties of which it has notice in writing.

14.6 Licensee shall market, advertise and/or promote all Included Programs on a fair, equitable and non-discriminatory basis vis-a-vis audiovisual content provided by other audiovisual content providers.

14.7 Licensee will ensure that appropriate copyright notices shall at all times accompany all Advertising Materials.

14.8 Within thirty (30) calendar days after the last day of the License Period for each Included Program, Licensee shall destroy (or at Licensor’s request, return to Licensor) all Advertising Materials for such Included Program.

15. LICENSOR’S REPRESENTATIONS AND WARRANTIES; COVENANTS. Licensor makes no representations or warranties, express or implied, except as set forth in this Article 15. Licensor hereby represents and warrants to Licensee that40:

15.1 It is a company duly organized under the laws of the state [or country of jurisdiction] of its organization and has all requisite corporate power and authority to enter into this Agreement and perform its obligations hereunder;

15.2 The execution and delivery of this Agreement by Licensee has been duly authorized by all necessary corporate action; and

15.3 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 principles.]

15.4 [Notwithstanding anything to the contrary contained herein, Licensor does not make any representations or warranties with respect to the content of any Included Program being in compliance with any local law, regulation or other content restriction or requirement of the Territory.]

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16. LICENSEE’S REPRESENTATIONS AND WARRANTIES; COVENANTS. Licensee hereby represents, warrants and covenants to Licensor that:

16.1 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;

16.2 The execution and delivery of this Agreement by Licensee has been duly authorized by all necessary corporate action.

16.3 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 principles]ii;

16.4 It has obtained and shall maintain all licenses and other approvals necessary to own and operate the Licensed Service in the Territory as a Basic Television service and otherwise exploit the rights granted hereunder in compliance with the laws of the Territory and it shall comply with all applicable laws, ordinances, rules and regulations in exercising its rights and performing its obligations and to own and operate the Licensed Service hereunder;

16.5 It will not transmit or exhibit an Included Program to use Advertising Materials except in accordance with the terms and conditions of this Agreement; and

16.6 The Licensed Service does not infringe or violate any right of a third party, including without limitation any third party patent, copyright, trade name, trademark, source mark, trade secret or any other intellectual property or proprietary right.

ii CP Note- Audrey, you wanted to check this with Len – do we need it or is such covered as a matter of law (understanding that we will lose the same on the other side.

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17. RIGHTS CLEARANCES; ROYALTIES. iii

17.1 Subject to clause 17.2 below, as between Licensor and Licensee, Licensor shall be solely responsible for paying: (i) all buyout fees for reproduction of the Included Programs and Advertising Materials and synchronization royalties or payments payable to composers, lyricists, authors and publishers of compositions embodied in Included Programs and Advertising Materials related to the use or other exploitation of Included Programs hereunder, except as otherwise required to be paid by Licensee as set forth in Section 17.2 below; and (ii) for all rights in sound recordings embodied within the Included Programs and Advertising Materials (including Licensee’s use thereof), to the full extent that it is legally possible for such rights to be bought out by Licensor and is prevailing industry practice of artists and their representatives.

17.2 As between the parties, Licensee shall be responsible for clearing and making payments with respect to any communication to the public of the Included Programs and Advertising Materials, including all public performance royalties and mechanical reproduction royalties, if any, payable to any organizations that are authorized to collect such royalties in the Territory (“Collecting Societies”) in respect of any musical compositions and/or sound recordings embodied in the Included Programs and Advertising Materials, where such clearances and payments arise solely from Licensee’s use of the Included Programs and Advertising Materials hereunder and to the extent such rights (the “Author’s Rights”) are vested in and controlled by any Collecting Societies (the “Collectively Administered Author’s Rights Payments”), and Licensor makes no representation or warranty with respect to such Collectively Administered Author’s Rights Payments.

17.3 Licensor has cleared all relevant rights for the reproduction and distribution of mechanical copies of any musical compositions and master recordings contained in the Included Programs and Advertising Materials which are licensed pursuant to this Agreement, to the maximum extent permitted by applicable law and prevailing industry practice of composers, songwriters, artists and their representatives on a "buy out" basis. If Licensee is subject to making payment for mechanical reproduction rights, and provided that Licensee has used and continues to use all commercially reasonable efforts to procure from the Collecting Societies specific and reasonably detailed information relating to the compositions and/or sound recordings in respect of which they are claiming payment, then Licensor will use all commercially reasonable efforts to support Licensee in the position that Licensor has already “bought out,” to the extent permitted by applicable law and prevailing industry practice, any and all rights which are the basis for such payments.

18. INDEMNIFICATION.

18.1 Indemnification of Licensee by Licensor . Licensor shall indemnify and hold harmless Licensee and 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 “Licensee Indemnified Parties”)) from and against iii This music language has been one of the largest sources of conflict with licensees since no other studio appears to be imposing the obligation for the clearance and payment mechanical reproduction rights royalties on its licensees.

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any and all Losses arising from or in connection with (a) the breach by Licensor of any of its representations or warranties, covenants or obligations contained in this Agreement and (b) claims that any of the Included Programs, under U.S. law,41 infringe upon the trade name, trademark, copyright, music synchronization, literary or dramatic right or right of privacy of any claimant or constitutes a libel or slander of such claimant (not including music performance and mechanical reproduction rights which are covered under Section 17). Licensor shall not be required to indemnify Licensee or its Representatives for any claims resulting from Licensee exhibiting an Included Programs or using Advertising Materials in a form other than as delivered by Licensor, or due to Licensee’s editing or modification of any Included Programs or Advertising Materials, or due to Licensee’s authorization of a third party to do any of the foregoing.42

18.2 Indemnification of Licensor by Licensee.

18.2.1 Licensee shall indemnify and hold harmless Licensor and 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 “Licensor Indemnified Parties”) from and against any and all Losses arising from or in connection with (i) the breach of any representation, warranty, covenant or obligation contained in this Agreement by Licensee, (ii) the exhibition of any material (other than material contained in Included Programs or Advertising Materials as delivered by Licensor and exhibited in strict accordance with this Agreement), in connection with or relating, directly or indirectly, to such Included Programs, (iii) the infringement upon or violation of any right of a third party other than as a result of the exhibition of the Included Programs in strict accordance with the terms of this Agreement, [(iv) any and all taxes, duties and levies (including interest and penalties on any such amounts but other than corporate income and similar taxes), payments or fees required to be paid to any third party now or hereafter imposed or based upon the licensing, rental, delivery, exhibition, possession, or use hereunder to or by Licensee of the Included Programs or any Copy of an Included Program hereunder, (v) the preparation of dubbed or subtitled versions of Included Programs by Licensee pursuant to Section 10.5.1, including all payments to any guild or union or other similar payments and (vi) failure of Licensee to comply with Licensor’s written instructions as to Advertising Materials and Names and Likenesses pursuant to Section 14]43.

18.3 In any case in which indemnification is sought hereunder:

18.3.1 The indemnified party shall promptly notify the indemnifying party of any claim or litigation giving rise to indemnification hereunder, including amount (if known and quantifiable) and basis thereof. Notwithstanding the foregoing, the failure to provide such prompt notice shall diminish the indemnifying party’s indemnification obligations only to the extent the indemnifying party is actually prejudiced by such failure.

18.3.2 At the indemnifying party’s option, the indemnifying party may assume the handling, settlement or defense of any such claim or litigation, at its sole cost and expense; provided that, in the event that the indemnifying party assumes control of such defense, it shall

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be deemed to have irrevocably agreed to indemnify the indemnified party from and against the entirety of any Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by such claim or litigation.

18.3.3 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, any and all 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 connection with 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;

18.3.4 If the indemnifying party assumes the handling, settlement or defense of any such claim or litigation, then except as otherwise set forth below, the indemnified party shall, at the indemnified party’s sole cost and expense, nonetheless have the right to participate in the defense of such claim or litigation giving rise to the indemnified party’s claim for indemnification; provided that, the indemnified party shall have the right to employ counsel separate (not to exceed one law firm plus, if applicable, one local counsel for any such claim or related claims) from the counsel employed by the indemnifying party, at the indemnifying party’s sole cost and expense, in the defense of any such claim or litigation that the indemnifying party is defending and to participate in such defense to the extent that the indemnified party has been advised by counsel that (i) there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party and, in the reasonable judgment of such counsel, it is advisable for such indemnified party to employ separate counsel in order to effectively assert such defense or defenses or (ii) such claim or litigation involves a claim which would be reasonably likely to present a conflict of interest between the indemnifying party and the indemnified party.

18.3.5 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 indemnified party shall have no obligation of any kind to consent to the entrance of any judgment or into any settlement unless such judgment or settlement (i) is for only money damages, the full amount of which shall be paid by the indemnifying party, (ii) includes, as a condition thereof, an express, unconditional release of the indemnified party from any liability or obligation with respect to such claim, or (iii) in the case where the Licensee is the indemnified party, involves the agreement not to further exploit an Included Program. Notwithstanding anything to the contrary

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contained herein, Licensor’s total liability with respect to the aggregate of all such claims applicable to any such Included Program under this Section 18 shall be limited to the License Fee for such Included Program.

19. DEFAULT AND TERMINATION.

19.1 Without limiting any other provision of this Agreement and subject to Section 19.3 of this Schedule, upon the occurrence of a Licensee Termination Event, Licensor may, in addition to any and all other rights which it may have against Licensee in law or equity, immediately terminate this Agreement or any license with respect to an Included Program by giving written notice to Licensee and/or accelerate the payment of all monies payable under this Agreement such that they are payable immediately and to retain such monies, it being acknowledged that Licensee’s material obligations hereunder include full, non-refundable payment of 100% of the License Fees described in this Agreement regardless of any early termination of this Agreement due to a Licensee Termination Event.iv Whether or not Licensor exercises such right of termination, Licensor shall, without prejudice to any of its other rights and remedies under applicable law, upon the occurrence of any Licensee Event of Default, have the right to suspend or discontinue the delivery of Copies or Advertising Materials to Licensee and the right to require Licensee to immediately return all Copies and Advertising Materials to Licensor in the condition as set forth in Article 10 hereof as well as the right to suspend Licensee’s right to exploit any Included Programs. No such suspension or discontinuance shall extend the License Period(s) of licenses granted or the Term hereunder. 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 amounts payable by Licensee to Licensor hereunder, together with interest, compounded monthly, at the lesser of (x) 110% of the Prime Rate and (y) the maximum rate permitted by law, plus reasonable attorneys’ fees, and all costs and expenses, including collection agency fees, incurred by Licensor to enforce the provisions thereof. As used herein, a “Licensee Event of Default” means the occurrence of any of the following: (A) Licensee (x) fails to timely perform or breaches any of its material obligations hereunder or otherwise materially breaches this Agreement, (y) fails to make timely payment of fees under this Agreement or any other agreement between Licensor and Licensee or (z) assigns or otherwise transfers this Agreement in violation of this Agreement; or (B) upon (i) Licensee becoming unable to pay its debts as they become due; (ii) a petition being presented or a meeting being convened for the purpose of considering a resolution for the making of an administration order, the winding-up, bankruptcy or dissolution of Licensee; (iii) Licensee becoming insolvent; (iv) a petition under any bankruptcy or analogous act being filed by or against Licensee (which petition, if filed against Licensee, shall not have been dismissed by the relevant authority within thirty (30) days thereafter); (v) sale or liquidation with respect to a material part of Licensee’s assets; (vi) Licensee commences an assignment for the benefit of creditors or similar proceeding; (vii) the process for appointing a receiver, trustee or similar person for the assets or operations of Licensee has commenced; (viii) an involuntary bankruptcy, receivership, liquidation, administration, dissolution or other similar proceeding is commenced regarding Licensee or any

iv Audrey, you had wanted to check with Len what the provisions for default were as a matter of California law and what our fall-back position could and should be as a matter of course.

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of its assets or operations; (ix) Licensee taking advantage of any applicable bankruptcy, insolvency or reorganization or any other like statute; (x) ceases or threatens to cease to carry on business or any significant portion of its business that it presently conducts; (xi) in Licensor’s reasonable opinion, Licensee is or will be unable to perform its obligations under this Agreement or (xii) the occurrence of any event analogous to the foregoing. As used herein a “Licensee Termination Event” shall mean (I) the occurrence of a curable Licensee Event of Default described in subclause (A) above that Licensee has failed to cure within thirty (30) days written notice from Licensor of the occurrence of such default or, if such default is the failure to pay any portion of the License Fee (including any advance, guarantee, installment or overage) or amount (including interest) overdue thereon, within five (5) Business Days of notice from Licensor, (II) the occurrence of a non-curable Licensee Event of Default described in subclause (A) above and (III) the occurrence of a Licensee Event of Default described in subclause (B) above. In the event of willful and/or repeated Licensee Events of Default by Licensee (including, without limitation, the willful and repeated failure to make timely payment of all sums due and payable to Licensor hereunder), Licensor may immediately terminate this Agreement by giving written notice to Licensee, without limitation of any and all other rights which Licensor may have against Licensee under law or equity, and without any further obligation to Licensee hereunder.

19.2 Subject to Section 19.3 of this Schedule, in the event that (A) Licensor materially defaults in the performance of any of its material obligations hereunder or (B) (i) Licensor becoming unable to pay its debts as they become due; (ii) a petition being presented or a meeting being convened for the purpose of considering a resolution for the making of an administration order, the winding-up, bankruptcy or dissolution of Licensor; (iii) Licensor becoming insolvent; (iv) a petition under any bankruptcy or analogous act being filed by or against Licensor (which petition, if filed against Licensor, shall not have been dismissed by the relevant authority within thirty (30) days thereafter); (v) sale or liquidation with respect to a material part of Licensor’s assets; (vi) Licensee commences an assignment for the benefit of creditors or similar proceeding; (vii) Licensee commences an assignment for the benefit of creditors or similar proceeding; (vii) the process for appointing a receiver, trustee or similar person for the assets or operations of Licensor has commenced; (viii) an involuntary bankruptcy, receivership, liquidation, administration, dissolution or other similar proceeding is commenced regarding Licensor or any of its assets or operations; (ix) Licensor taking advantage of any applicable bankruptcy, insolvency or reorganization or any other like statute; or (x) the occurrence of any event analogous to the foregoing (each of the above acts is hereinafter referred to as a “Licensor Event of Default”), and Licensor fails to cure such Licensor Event of Default within thirty (30) days after delivery by Licensee to Licensor of written notice of such Licensor Event of Default, then Licensee may, in addition to any and all other rights which it may have against Licensor, immediately terminate this Agreement by giving written notice to Licensor. Licensee’s rights will be limited to an action at law for damages as a result thereof, and in no event will Licensee be entitled to injunctive or other equitable relief of any kind requiring delivery of the Programs. Any breach by Licensor is limited to the particular Program to which the breach applies; provided that in the case of willful, repeated and substantial defaults by Licensor, Licensee may immediately terminate this Agreement.

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19.3 No Discharge on Termination . Notwithstanding anything to the contrary contained

in Sections 19.1 or 19.2 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 the obligation to pay any amounts payable hereunder accrued as of such date of termination, the obligation to return any Copies, dubbed or subtitled versions of any Included Program, or promotional or advertising materials of any Included Program or any indemnification obligation).

20. EXCLUSION RIGHT. Notwithstanding anything contained in this Agreement to the contrary, Licensee hereby acknowledges that Licensor may be unable to license a program to Licensee on the terms set forth in this Agreement due to certain arrangements between Licensor and individuals involved in the production or financing of such program that require Licensor to obtain the approval of such individuals prior to the licensing of such program (“Third Party Exclusion Right”). In any such circumstance, Licensor hereby agrees to use good faith business efforts to obtain the approvals necessary to allow Licensor to license such program to Licensee under the terms of this Agreement. Notwithstanding anything contained herein to the contrary, Licensor and Licensee hereby agree that Licensor’s inability to obtain such necessary approvals and to license any such program to Licensee under the terms of this Agreement shall not be deemed to be, or in any way constitute, a breach of this Agreement. If Licensor is unable to obtain such necessary approvals, Licensor shall give Licensee written notice thereof and shall have no further obligations to Licensee with respect to such program.

21. ASSIGNMENT. Licensee shall not sell, assign, transfer, sublicense, subdistribute, transfer, mortgage, pledge or hypothecate its rights hereunder, in whole or in part, whether voluntarily or by operation of law (including by merger, consolidation or change in control), without Licensor’s prior written approval, nor shall any of said rights or licenses be assigned or transferred or duties delegated by Licensee to any third party by operation of law (including by merger, consolidation or change of control) or otherwise. Any purported transfer, assignment or delegation in violation of the foregoing sentence shall be null and void and without effect, and the rights and licenses granted hereunder shall thereupon become voidable at the option of the Licensor. In the event that Licensor consents to Licensee’s assignment of its rights or interest in or to this Agreement, in whole or in part or delegates its duties hereunder, Licensee shall nevertheless continue to remain fully and primarily responsible and liable to Licensor for due, full, complete and faithful performance of all terms and conditions of this Agreement to be performed on the part of Licensee and no assignment by Licensee shall expand the scope of rights granted hereunder or otherwise entitle Licensee to exhibit the Programs on any television service other than the Licensed Service(s).44

22. 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

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other remedy, right, undertaking, obligation, or agreement of either party. Each of the foregoing provisions of this Article 22 shall be subject to the express limitations on Licensee’s remedies as set forth in Section 19.3and Section 30 hereof.

23. GOVERNING LAW; ARBITRATION. This Agreement shall be interpreted and construed in accordance with the substantive laws (and not the law of conflicts) of the State of California and the United States of America with the same force and effect as if fully executed and to be fully performed therein. 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 23 (a “Proceeding”) shall be submitted to [choose one:]45 [JAMS (“JAMS”) for binding arbitration under its Comprehensive Arbitration Rules and Procedures if the matter in dispute is over $250,000 or under its Streamlined Arbitration Rules and Procedures if the matter in dispute is $250,000 or less (as applicable, the “Rules”)] OR [ADR Services (“ADR Services”) for binding arbitration under its Arbitration Rules (the “Rules”)] OR [the American Arbitration Association ("AAA") for binding arbitration under its Commercial Arbitration Rules (the “Rules”)] OR [the International Chamber of Commerce ("ICC") for binding arbitration under its Rules of Arbitration (the “Rules”)] to be held solely in Los Angeles, California, U.S.A., in the English language in accordance with the provisions below.46

23.1 Each arbitration shall be conducted by an arbitral tribunal (the “Arbitral Board”) consisting of [choose one:] [a single arbitrator who shall be mutually agreed upon by the parties. If the parties are unable to agree on an arbitrator, the arbitrator shall be appointed by [JAMS] [ADR Services] [the AAA] [the ICC]. The arbitrator shall be a retired judge with at least ten (10) years experience in commercial matters.] OR [three (3) arbitrators who shall be retired judges knowledgeable in commercial matters, one chosen by Licensor and one chosen by Licensee, in each case, within thirty (30) days of notice of arbitration and one chosen by the two (2) arbitrators selected by the parties. If the parties fail to mutually agree upon the third arbitrator within thirty (30) days of the selection of both such arbitrators, then the third arbitrator shall be selected in accordance with the Rules. The third arbitrator shall be a retired judge with at least ten (10) years experience in commercial matters.] [Include the following if appropriate to the situation:] [The Arbitral Board shall assess the cost, fees and expenses of the arbitration against the losing party, and the prevailing party in any arbitration or legal proceeding relating to this Agreement shall be entitled to all reasonable expenses (including reasonable attorney’s fees). Notwithstanding the foregoing, the Arbitral Board may require that such fees be borne in such other manner as the Arbitral Board determines is required in order for this arbitration clause to be enforceable under applicable law.]47 The parties shall be entitled to conduct discovery in accordance with Section 1283.05 of the California Code of Civil Procedure, provided that (a) the Arbitral Board must authorize all such discovery in advance based on findings that the material sought is relevant to the issues in dispute and that the nature and scope of such discovery is reasonable under the circumstances, and (b) discovery shall be limited to depositions and production of documents unless the Arbitral Board finds that another method of discovery (e.g., interrogatories) is the most reasonable and cost efficient method of obtaining the information sought.

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23.2 There shall be a record of the proceedings at the arbitration hearing and the

Arbitral Board shall issue a Statement of Decision setting forth the factual and legal basis for the Arbitral Board's decision. If neither party gives written notice requesting an appeal within ten (10) business days after the issuance of the Statement of Decision, the Arbitral Board's decision shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to the Los Angeles County Superior Court or, in the case of Licensee, such other court having jurisdiction over Licensee, which may be made ex parte, for confirmation and enforcement of the award. If either party gives written notice requesting an appeal within ten (10) business days after the issuance of the Statement of Decision, the award of the Arbitral Board shall be appealed to three (3) neutral arbitrators (the "Appellate Arbitrators"), each of whom shall have the same qualifications and be selected through the same procedure as the Arbitral Board. The appealing party shall file its appellate brief within thirty (30) days after its written notice requesting the appeal and the other party shall file its brief within thirty (30) days thereafter. The Appellate Arbitrators shall thereupon review the decision of the Arbitral Board applying the same standards of review (and all of the same presumptions) as if the Appellate Arbitrators were a California Court of Appeal reviewing a judgment of the Los Angeles County Superior Court, except that the Appellate Arbitrators shall in all cases issue a final award and shall not remand the matter to the Arbitral Board. The decision of the Appellate Arbitrators shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to the Los Angeles County Superior Court or, in the case of Licensee, such other court having jurisdiction over Licensee, which may be made ex parte, for confirmation and enforcement of the award. [The party appealing the decision of the Arbitral Board shall pay all costs and expenses of the appeal, including the fees of the Appellate Arbitrators and including the reasonable outside attorneys’' fees of the opposing party, unless the decision of the Arbitral Board is reversed, in which event the costs, fees and expenses of the appeal shall be borne as determined by the Appellate Arbitrators.]48

23.3 Subject to a party's right to appeal pursuant to the above, neither party shall challenge or resist any enforcement action taken by the party in whose favor the Arbitral Board, or if appealed, the Appellate Arbitrators, decided. Each party acknowledges that it is giving up the right to a trial by jury or court. The Arbitral Board 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 Arbitral Board’s award; provided, however, that prior to the appointment of the Arbitral Board 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 Los Angeles County, California or, 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. All arbitration proceedings (including proceedings before the Appellate Arbitrators) shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.

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23.4 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. The provisions of this Section 23 shall supersede any inconsistent provisions of any prior agreement between the parties.

[To be included only when there is a risk of the arbitration clause being invalidated:][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. The parties acknowledge that the provisions of this Section 23 are currently unenforceable under California law but mutually intend for this Section to apply in the event such provisions later become enforceable under California law.]

24. NOTICES. Except as otherwise expressly provided herein, all notices, statements and other documents desired or required to be given hereunder 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 Licensor and Licensee as set forth in Sections 24.1and 24.2 (or at such other address as may be designated in writing by either party). Notice given by facsimile shall be deemed given on the Business Day of receipt, as evidenced by the confirmation sheet thereof; notice given by personal delivery shall be deemed given upon delivery and notice given by overnight delivery or courier service shall be deemed given the first Business Day following the Business Day of delivery to the overnight delivery service. “Business Day” shall mean any day other than (i) a Saturday or Sunday or (ii) any day on which banks in Los Angeles, California or location of notice recipient are closed or authorized to be closed. All notices hereunder shall be in writing and shall be sent by courier service, by personal delivery, or by facsimile to the address or fax number of the party for whom it is intended as follows, or to such other address or fax number as any party may hereafter specify in writing:

24.1 If to Licensor, to it at [INCLUDE SPE ENTITY NOTICE PROVISION],49 with copies to: Sony Pictures Entertainment Inc., 10202 West Washington Boulevard, Culver City, CA 90232 U.S.A., Attention: General Counsel, Facsimile No.: 1-310-244-0510 and Sony Pictures Television International, 10202 West Washington Boulevard, Culver City, CA 90232, U.S.A., Attention: President, Fax no.: +1-310-244-6353.

24.2 If to Licensee, to the address specified in the Basic Television License Agreement.

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25. FORCE MAJEURE. Neither party shall in any manner whatsoever be liable or otherwise responsible for any delay or failure of performance (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are proximately caused by an 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” in respect of a party shall mean (i) any reasonably unforeseeable 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), act of terrorism, civil commotion, disobedience or unrest, insurrection, public strike or labor dispute, riot or revolution, fire, flood, drought, other natural calamity, damage or destruction to plant and/or equipment or any acts of God within or outside the United States and (ii) any other reasonably unforeseeable event, accident, condition, cause, contingency or circumstance with a level of materiality similar to the events set forth in the foregoing clause (i).

26. 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 United States 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 Article 18.3 of this Agreement.50

27. CONFIDENTIALITY. Except as otherwise provided in this Section 27 neither party shall, without the express written consent of the other, publicly divulge or announce, or in any manner disclose to any third party, other than its attorneys, advisors, officers, directors, equity owners, employees and other representatives and its parents, subsidiaries and affiliates and their officers, directors, equity owners, employees and other representatives, shareholders, accountants, parent entities, affiliates or auditors, and, in the case of Licensor, its profit participants, or pursuant to guild obligations (each of whom shall be subject to the confidentiality provision hereof) on a need-to-know basis, the existence of this Agreement, any of the terms and conditions of this Agreement, including any amounts payable hereunder and any confidential information disclosed by a party to another party in connection with the negotiation of this Agreement (the “Confidential Information”). Each party agrees not to use any Confidential Information of the other party for any purpose except to evaluate and engage in discussions concerning a potential or actual business relationship between the parties. Neither party shall issue any press release regarding the existence of or terms of this Agreement without the prior written consent of the other party. In the event that a party is required by law, or governmental authority to disclose any Confidential Information, 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

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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 (i) 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 and (ii) other licensees of the Included Programs (provided, that the information shared with such other licensees shall be limited to information regarding Licensee’s License Period and/or the scope of Licensee’s exclusivity (if any).]

28. BLOCKED CURRENCY/SECURITY DEPOSITS. If Licensee is prohibited or restricted from making payment in the currency specified herein of any monies at the time when same are due and payable to Licensor hereunder, by reason of the laws or currency regulations within the Territory, Licensee shall advise Licensor in writing to such effect promptly. In any such case and upon condition that the same shall be permitted by law, Licensee shall deposit to the credit of Licensor an equivalent amount of the monies then due in local currency in a bank or banks approved in writing by Licensor in the Territory (with all interest on such deposit accruing to Licensor) or, if requested by Licensor to transfer, at Licensee’s cost, an equivalent amount in the specified currency of monies then due to a bank or banks in another country in accordance with Licensor’s written instructions. [In addition, Licensor may at any time during the Term, and prior to receiving full payment of all monies due hereunder by written notice to Licensee require that Licensee supplement such deposits as security for the timely payment of monies then due under this Agreement, or to compensate for any diminution in value due to changes in the applicable rate of exchange. Failure by Licensee to make any such deposit or failure to supplement any such deposit within five (5) business days after delivery of notice to deposit or to supplement to Licensee will be deemed a Licensee Event of Default and will entitle Licensor to exercise any rights granted under this Agreement upon the occurrence of a Licensee Event of Default hereunder. In the event that Licensor elects to require deposits under this Article 28, Licensee will nevertheless remain obligated to make payments due under this Agreement at the times, place and in the currency stipulated subject at all times to applicable law and regulations. Any security deposit made under this Article 28 will be available to fund regular remittances and/or to fund approved applications for remittance to Licensor and/or for return to Licensee and/or for credit to security deposits or parts thereof thereafter due to be made by Licensee, provided, however, that deposits will be returned or credited only to the extent that corresponding equivalent payments have been received by Licensor and/or will be made available to fund remittances only via direct deposit or transfer to the remitting bank under suitable documentation evidencing the fact than an equivalent remittance to Licensor will be effected.]51 In addition, in the event Licensee is so prohibited or restricted from making payment to Licensor of any monies in the currency specified in the Television License Agreement, Licensor shall have the right upon thirty (30) days notice to cancel and terminate this Agreement. If this Agreement is terminated pursuant to this Article 28, Licensor will credit Licensee with a refundable amount to be negotiated by the parties in good faith.52

29. FCPA. It is the policy of Licensor to comply and require that its licensees comply with the U.S. Foreign Corrupt Practices Act, 15 U.S.C. Section 78dd-1 and 78dd-2, and all other applicable anti-corruption laws (collectively, "FCPA"). Licensee represents, warrants and

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covenants that: (i) Licensee is aware of the FCPA and will advise all persons and parties supervised by it of the requirements of the FCPA; (ii) Licensee has not and will not, and to its knowledge, no one acting on its behalf has taken or will take any action, directly or indirectly, in violation of the FCPA; (iii) Licensee has not in the last 5 years been accused of taking any action in violation of the FCPA; (iv) Licensee has not and will not cause any party to be in violation of the FCPA; (v) should Licensee learn of, or have reason to know of, any request for payment that is inconsistent with the FCPA, Licensee shall immediately notify Licensor; and (vi) Licensee is not a "foreign official" as defined under the U.S. Foreign Corrupt Practices Act, does not represent a foreign official, and will not share any fees or other benefits of this contract with a foreign official. Licensee will indemnify, defend and hold harmless Licensor and its Representatives for any and all liability arising from any violation of the FCPA caused or facilitated by Licensee. In the event Licensor deems that it has reasonable grounds to suspect Licensee has violated the FCPA, Licensor and its Representatives shall have the right to review and audit, at Licensor's expense, any and all books and financial records of Licensee at any time, and Licensor shall be entitled partially or totally to suspend its performance hereunder until such time it is proven to Licensor's satisfaction that Licensee has not violated the FCPA. In the event Licensor determines, in its sole discretion (whether through an audit or otherwise), that Licensee has violated the FCPA, either in connection with this Agreement or otherwise, Licensor may terminate this Agreement immediately upon written notice to Licensee. Such suspension or termination of this Agreement shall not subject Licensor to any liability, whether in contract, tort or otherwise, to Licensee or any third party, and Licensor's rights to indemnification or audit with respect to the FCPA shall survive such suspension or termination of this Agreement.53

30. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSSES OR [FOR LOST PROFITS]V.

31. CAPTIONS/DRAFTING.

31.1 Article, Section 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.

31.2 Rules of Construction. Unless the context otherwise requires:

31.2.1 each capitalized term used herein has the meaning assigned to such term herein;

31.2.2 “or” is not exclusive;

31.2.3 the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”;v NTD – discuss whether to include.

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31.2.4 words in the singular include the plural and words in the plural include the

singular and all pronouns and all variations thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the party or parties may require;

31.2.5 all references in this Agreement to Articles, Sections, subsections, recitals, paragraphs, Exhibits and Schedules shall be deemed references to Articles, Sections, subsections, recitals and paragraphs of, and Exhibits and Schedules to, this Agreement.

32. SEVERABILITY. If any provision in this Agreement is determined by a court or arbitrator of competent jurisdiction to be invalid or unenforceable for any reason, 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.

33. 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 any right to enforce the terms hereof.

34. NO JOINT VENTURE. Nothing contained in this Agreement shall constitute a partnership between, or joint venture by, the parties hereto or constitute either party the agent of the other. Neither party shall hold itself out contrary to the terms of this Agreement and neither party, shall become liable by reason of any representation, act or omission of the other contrary to the provisions hereof.

35. TRADEMARKS. Licensee acknowledges that as between Licensee and Licensor the registered and unregistered trade names, logos, trademarks, characters and the titles of the Included Programs and Advertising Materials of Licensor and its affiliates (the “Marks”) are the exclusive property of Licensor. Licensee agrees not to use, or permit the use of, the Marks in advertisements or promotional material relating to the Licensed Service(s) or otherwise without the prior written approval of Licensor.

36. ATTACHMENTS. Any attached schedules, exhibits, other attachments and all of the written and printed parts thereof are a part of this Agreement.

37. BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit of Licensee and Licensor and their respective successors and assigns, except that Licensee shall have the right to assign its rights and the licenses granted hereunder only in accordance with Section 21 of this Agreement.

38. SEPARATE LICENSES. If more than one Included Program has been licensed hereunder, Licensee and Licensor acknowledge that the licenses for the Included Programs have been separately negotiated and individually priced, and that Licensor did not directly or indirectly condition the granting of the licenses of any one or more of the Included Programs upon the

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licensing of any other Included Programs, and that they have been included in one agreement merely for the convenience of the parties.

39. COUNTERPARTS. This Agreement may be executed in any number of counterparts and all of such counterparts taken together shall constitute one and the same instrument.

40. 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.

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1 This allows for the reception of the Included Programs in motels, and hotels that carry the Licensed Service. If Licensee asks that its offices be an Affiliated Institution, and the business unit approves, you can add this language to the Affiliated Institution definition:

and [(2) Licensee’s executive office (“Licensee Executive Office”) in the Licensed Language only and for corporate purposes only; it being understood and agreed that (a) Licensee shall only have the right to broadcast the Included Programs in Licensee Executive Offices to the extent that such broadcast is a simultaneous technical extension of the signal in the Territory and, as such, appears on-air in Licensee’s Executive Offices in its entirety simultaneously with and in the same format as it is broadcast in the Territory, and (b) no additional telecasts or Exhibition Days have been granted for such use, and (c) only visitors to Licensee Executive Offices and employees thereof shall be able to view such broadcasts and shall not have to pay specifically in order to do so. Should Licensor receive any complaints from any third party licensees of or rights holders in the Included Programs, participants or guilds, with respect to the broadcast of the Included Programs in Licensee Executive Offices, Licensee agrees to immediately cease such broadcasts at Licensor’s written request and shall indemnify Licensor for any claims or losses resulting from any broadcast under this Section.

2 Insert Schedule B if business person would like to include a list of specific Affiliated Institutions.3 We would use this language in those Agreements where the Television Delivery System is not owned by the Licensee.4 Sometimes the “originates” must be changed to “and is received” depending on the delivery method (i.e. a satellite transmission may start outside the Territory, but so long as it is received solely within the Territory, we have agreed to this substitution).5 Some licensees delivering over DTH may ask for unintentional spillover language since the satellite signal may spill over into adjacent territories. Provided the SPE client agrees to allow inadvertent spillover language, add at the end of the basic definition or the Territory the following (or similar) language:

It is expressly acknowledged and agreed by the parties that where the Included Program(s) are transmitted by satellite for reception in the Territory, such transmissions may be capable of reception outside the Territory due to the inherent incapability of satellites to beam down signals confined to territorial boundaries (“Overspill”). The incidental and unavoidable occurrence of Overspill shall not be deemed reception outside the “Territory” provided the program signal is encrypted and the Licensee maintains industry-standard geofiltering mechanisms in accordance with the terms hereof and the content protection schedules attached hereto, such Overspill is not promoted or marketed to persons outside the Territory, and no revenue is derived by Licensee from such Overspill.

6 Sometimes, in certain territories (i.e., India) where basic television is offered mostly on an “a la carte” basis, we add language following subsection (d) above in order to accommodate the method of offering to subscribers: “A program service that is offered on a stand-alone or “a la carte” basis shall not, on that basis alone, be considered not to qualify as Basic Television unless the fee per subscriber generally charged by such program service is comparable to the fee charged by premium pay television services in the same territory.” We have also included, where specified by a term sheet or a business person or requested by a licensee:

“Extended Basic Television Service” shall mean a single linear schedule of programming, (a) the signal for which is fully Encrypted and is available solely within the Territory, (b) which is delivered together with other program services solely within the Territory for non-interactive television viewing simultaneously with such delivery, (c) in respect of which a periodic subscription fee is charged to viewers as part of one or more of the lowest priced tiers of multiple-channel program services available to subscribers, other than on subscription or premium television services or tiers of services for which a separately allocable or identifiable premium program fee is charged and (d) that is not, and is not positioned or marketed as, a premium pay television service.”

7 Some basic television channels are supported fees of Subscribers (e.g., the Disney Channel).8 While most basic deals are for linear programming rights, on occasion we may be asked to also license basic on-demand rights for the Included Programs, depending on the service and the territory. If this is true, consult an on-demand form for the applicable definition of “on-demand” and include as a secondary grant under basic so it will read: (1) a single linear schedule of programming (a) – (d)…., and (2) [insert description of on-demand delivery]. Further, if we are licensing Current Television product through a basic deal, a Licensee may ask for “catch up rights” which is essentially an on-demand grant that may be limited in time to a specific period after the air date. Such time period, as well as whether or not to grant such rights, should be discussed with the appropriate business person, particularly if Licensee is asking for a holdback. Catch-Up rights would not fall in the definition of Basic Television but would instead be granted as a separate right under the rights grant, and although each catch up provision would be specific to the program and territory. Here is an example of a catch-up rights provision based upon language previously agreed to in Latin America:

During the License Period and subject at all times to the Licensor’s Content Protection Requirements set forth in Schedule A attached hereto and incorporated herein (including, for the avoidance of doubt, that the Licensee Website be geo-filtered to ensure that the episodes will only be available for viewing within the Territory), Licensee shall be allowed to offer a

registered subscriber to the Licensed Service the ability to view an episode of the Program on a Catch-Up Basis solely on a website (with access to episodes of Programs password protected to allow only registered subscribers of the Licensed Service) wholly owned, controlled and/or operated by Licensee and branded “[___]” (the “Licensee Website”) solely in Standard Definition and solely via streaming (and, for clarity, not downloading); provided that:

(a) The episodes shall be made available on a Catch-Up Basis without advertising;

(b) No fee may be charged nor may any other form of consideration be received by Licensee for the offer of any episode on a Catch-Up Basis;

(c) Licensee provides Licensor all relevant and available non-confidential information regarding usage of the Licensee Website and viewership of the Program on a Catch-Up Basis on the Licensee Website including, without limitation, information regarding the number of registered users of such website viewing the Program, the demographics of registered users (along with focus group surveys and any demographic studies), research highlighting user viewing and program selection behavior, the impact of marketing and promotions, and any other information Licensor may make suggestions to Licensee regarding the direction of ongoing research.

“Catch-Up Basis” shall mean the ability of a viewer to request to view an episode that has had its initial exhibition on the Licensed Service, the exhibition start time of which is at a time specified by the viewer in its discretion, subject to the following:

(a) Episodes of a Program may not be exhibited on a Catch-Up Basis during the last six (6) months of such Program’s License Period;

(b) Only two (2) episodes of a Program may be made available on a Catch-Up Basis at any given time;(c) Each episode that may be made available on a Catch-Up Basis must be made available on a Catch-Up Basis

within fourteen (14) days of such episode’s initial exhibition on the Licensed Service; and(d) Each episode that may be made available on a Catch-Up Basis may be offered on a Catch-Up Basis for no

longer than fourteen (14) consecutive days.

The assumption should be that the catch up rights would be exercised on the Television Delivery System, but some licensees may ask for IP-based catch up rights which are currently more prevalent domestically than internationally, but we may start seeing it more internationally.9 Sometimes in basic television deals, there is simply a maximum number of exhibitions per Included Program. Sometimes the exhibitions are limited by exhibition days. This should be specified by the business person in any term sheet. The number of runs per exhibition day is set by the business person. Generally, there are two or three runs per day, but such information should be passed along as part of the term sheet. Further, some licensees may ask to shift the exhibition day start time and end time or the time of primetime. This request should always be run by a business person – it is always a business decision.10 This defined term may be used in Basic Volume or Output Deals where the scale of License Fees payable is based on box office performance. The definition can be included in the front of the License Agreement in the License Fees section, or alternatively, when referencing North American Box Office Gross Receipts in the chart, you can follow the use of the term with “(as defined at Schedule A)”.11 Be careful in your use of Qualify Content Provider because sometimes it is favorable to us and sometimes it is used as a restriction when in our favor (i.e. an MFN that we are getting (consider using without bracketed language), when not in our favor (i.e., granting an MFN, consider limiting to other providers licensing basic television in the Territory as set forth in the bracket. Further, consider also using at times “other audio visual content provider” at times and replacing Qualified Content Provider throughout the agreement and STAC with such phrase.12 You may be asked to add (or may want to add) FTTH (fiber-to-the-home) if the Licensee’s channel is carried over a fiber optic cable based system, but since that technology is not in place in many of the SPTI territories, we don’t see the need to incorporate into the more general definition at this time. Further do not use this definition for acquisition of television rights. In that case, you will obviously want the greatest number of transmission means from a rights in perspective so all of the limitations should come out and be added as a transmission means and the following phrase should precede the list of transmission means: “any and all transmission means know known or hereafter devised, including but not limited to…”13 Delete bracketed items to the extent such definitions are not included.14 This language may need to be modified if we are granting high definition rights. 15 Insert only if approved by business person on transaction.16 The Restrictions Section will have to be tailored for each kind of media in which we are granting rights, including over the air HD and SD broadcasts. Check with the Digital Policy group before granting any over the air rights to our

content.17 The “does not have” language has historically been kept to address the situation where we have committed to license known titles whose license periods have not started as of the effective date of the Agreement. Ultimately if there is push back, the language can be struck since we have the right in the event SPE entity “no longer has” the right (no longer triggering then from the date of execution of the agreement). Generally there has not been pushback on the phrase.18 Add bracketed language if adding language in endnote 22.19 There are really several options for remedies for a withdrawal. Here are some additional options that we have agreed to:

“In the event of any withdrawal of an Included Program pursuant to this Article 5 before Licensee has exercised each of the [Exhibitions/Exhibition Days] for such program, Licensor shall select a substitute program, which Licensee would have the right to exhibit for the remainder of the shorter of either the License Period or remaining [Exhibitions/Exhibition Days] of the withdrawn program as well as such other rights and obligations as if such substitute program were an Included Program. Withdrawal of an Included Program and related materials under this Article 5, shall in no event be deemed to be, or in any way constitute a breach of this Agreement and Licensee shall not be entitled to any rights or remedies as a result of such withdrawal including any right to recover for lost profits or interruption of its business.” OR “In the event of any withdrawal of an Included Program pursuant to this Article 5 before Licensee has exercised each of the [Exhibitions/Exhibition Days] for such program, Licensor shall promptly commence a good faith attempt to agree with Licensee as to a substitute program, which Licensee would have the right to exhibit for the remainder of the shorter of either the License Period or remaining [Exhibitions/Exhibition Days] of the withdrawn program as well as such other rights and obligations as if such substitute program were an Included Program. Withdrawal of an Included Program and related materials under this Article 5, or the failure to agree upon a substitute program or reduction in License Fee therefor, shall in no event be deemed to be, or in any way constitute a breach of this Agreement and Licensee shall not be entitled to any rights or remedies as a result of such withdrawal including any right to recover for lost profits or interruption of its business.”

In basic deals, we generally do not agree to give pro rata refunds because the value of a program lies in the beginning of its runs (so that if any run has been taken we want the opportunity to discuss but not obligate ourselves to refund even in the best case scenario for Licensee). In other media, we may have a fallback position of giving a pro rata refund of a portion of any minimum guarantee or per-title guarantee.20 In addition, we sometimes agree to add “no frustration” language – here are a few examples of language we’ve agreed to in other deals:

“ Content Provider acknowledges and agrees, however, that it shall not use the foregoing withdrawal rights with the intent of materially frustrating the purpose and effect of this Agreement.” OR“Content Provider shall not enter into any agreement with any other distributor of audio-visual content in the Territory that would require Content Provider to Withdraw any Subscription Title hereunder.”

21 If contractual terms are in foreign currency, but payments are to be made in US Dollars (you will want to check with applicable finance group whether we want payments in foreign currency), add the following language:

“The exchange rate for conversion of [foreign currency] into U.S. dollars for purposes of converting the License Fee(s) shall be based on the exchange rate published in the U.S. Edition of the Wall Street Journal on the first business day of each month for which such License Fees are due and payable.”

22 Insert appropriate SPE entity bank account. Note further that different entities prefer different reference lines for payment information23 Some SPTI divisions use Contract numbers more readily. SPT usually does references: to a deal.24 Prime Rate can be exchange for Libor, and we can give to 100% of Prime or Libor though we usually check with SPTI finance to confirm. If change definition for interest in this section, must make changes in the termination provision and audit provisions as well.25 Sections 8.3 and 8.4 shift the entire economic burden of all taxes to the Licensee. They basically say: (i) Licensee is responsible for any taxes, (ii) if Licensee is required to withhold taxes, Licensee must gross up the Licensor so that the net amount received is equal to the amount had no such withholding been required, and (iii) if we are somehow held liable for any taxes by the government, we have a contractual right of reimbursement from the License. In the event that the business folks do not want to impose this on the Licensee or agree to a lesser burden, you can replace Sections 8.3 and 8.4 with the following:

“All prices and payments stated herein shall be exclusive of and made free and clear of and without deduction or withholding for or on account of any tax, duty or other charges, of whatever nature imposed by any taxing or governmental authority, including [__________], unless such deduction or withholding is required by applicable law, in which case Licensee shall: (i) withhold the legally required amount from payment; (ii) remit such amount to the applicable taxing authority; and (iii) within thirty (30) days of payment, deliver to Licensor original documentation or a certified copy evidencing such payment (“Withholding Tax Receipt”). In the event Licensee does not provide a Withholding Tax Receipt in accordance with the preceding sentence, Licensee shall be liable to and shall reimburse Licensor on demand for the withholding taxes deducted from

license fees.”

In certain territories the Withholding Tax Receipts are delivered by the government authorities on a quarterly basis (as opposed to within 30 days after payment). In such a case, it is okay to revise the above so that the Withholding Tax Receipts are delivered within 30 days following the end of a quarter.

Depending upon the territory, there may be value-added taxes or other specifically named taxes. Check with Tax prior to sending out the initial draft. For example, Japanese Consumption Tax (if Japan); Goods and Services Tax and Provincial Sales Tax (if Canada). In the event that VAT is applicable, add the following language:

"All prices mentioned in this Agreement are exclusive of value added tax or any analogous tax. Licensee shall be responsible for and shall pay any applicable value added taxes or other national, regional or local sales, use, excise, gross receipts or other similar taxes, duties or charges arising in connection with this Agreement."

26 In the event that “catch-up” or “free-on-demand” rights are included in the Basic Television License Agreement, check with the applicable finance group regarding additional reporting requirements.27 Fallback position may be that Licensee commits to placing Licensor on customary mailing lists for Subscribers.28 Licensees may require independent third party auditors conduct an auditor in lieu of an SPE entity based on privacy concerns vis a vis other licensors. If the applicable finance group agrees to the use of an independent third party auditor, then SPE entity should preserve the right to select the third party auditor. In some cases, however, if requested, we have given on the third party auditor being “reasonably acceptable to Licensee” language. Here is an example:

Licensor shall have the right, to be exercised in good faith for purposes of verifying the information in the usage reporting, upon no fewer than thirty (30) days' prior written request to Licensee, to have an independent third party selected by Licensor audit and check at Licensee’s premises, Licensee’s records pertaining to the data contained in the usage reporting, provided that, any such audit (a) shall be conducted during business hours; [(b) must not occur more frequently than once each twelve (12) month period;] and (c) shall be conducted in a manner designed to not unreasonably interfere with Licensee’s ordinary business operation.

Licensees may request that “copy” get removed and we have agreed subject to approval from finance. Further, we have agreed to limit the audit in time (i.e., no more frequently than once every (12) months), but in doing so you should always check with finance.

29 You may get pushback on for how long after the term we are entitled to audit. Before we commit to a date certain, check with the appropriate finance department.30.31 Often times Licensees will request that the audit cost shifts upon a higher percentage of differential. This is a business call and a finance department call. We have, however, given up to 10%. Note further, the audit that is allowed in different media will be different, require different reporting and have different consequences. For example, in a flat fee license deal (notwithstanding the media), a licensee may argue that audit is unnecessary. However, we will always maintain the right to audit for number of exhibitions (if exhibitions are restricted) and further, in media where numbers of exhibitions are not restricted, we still want the right to audit the number or times a program was shown or run or a stream was accessed so that we can account to third party participants based on SPE’s allocations of revenue.32 Can give “outside attorneys’ fees” and “reasonable attorneys’ fees”.33 If a Licensee does not have digital file capacity yet, the language can read:

“Licensor shall make available to Licensee at least thirty (30) days prior to the Availability Date for each Included Program, a videotape (each videotape, a “Copy”; it being understood that Licensor may elect to provide digital encoded files as Copies in lieu of videotapes if and when Licensee becomes technically enabled to receive such digital encoded files) . . . “

34 For deals that include HD rights, we may include an “Administrative Fee” to cover the materials charges for HD content. Check with your business contact before including this fee. Here is an example that we have used in other deals:

“In the event that Licensor authorizes Licensee to exhibit an Included Program in High Definition, Licensee shall pay to Licensor an administrative fee of $[____] (“Administrative Fee”) for each Copy of an Included Program made available by Licensor in HD format. The aggregate Administrative Fee for all Included Programs made available in HD Format in each Term Year shall be due and payable on [____] of such Term Year”.

35 Sometimes, we will agree to splitting the dub/subtitling costs and access only after the License Periods (especially if exclusive) or access to Licensee- created dubs only after a payment. However, these are deal specific terms – and in any event the ownership rights of the dub shall ALWAYS revert to Licensor, even if the access to the physical masters do not.

36 This language has been purposely left as an undefined term since we want it to be as broad as possible since it’s an MFN in our favor.37 Can also give “as required by law”.38 Retransmission rights are the rights to retransmit a broadcast or an exhibition of a program to permit viewers who would not otherwise be able to view it (as a result of being located outside of a local broadcast territory, for example) to receive such broadcast or exhibition. While this is directly applicable to free TV, this should be included in all deals for free television, basic television and pay television, both in the US and internationally, because there are certain jurisdictions which may permit the retransmission of a broadcast of a program without our consent and we want to ensure that we have the right to all royalties from such broadcast Any change to this language should be approved by Jared Jussim.39 This pre-promote period depends on Territory and whether a title is coming out of an exclusive pay deal in an international territory – please check the pay television agreement in the territory, with business person running the deal or with Natalie Pratico’s group to confirm the necessary pre-license period and post-license period blacks.40 With Licensee push-back, we may need to add any combination of the following representations and warrantees in its own paragraph subheading:

Licensor further represents and warrants to Licensee, without limiting its withdrawal rights under Section 4 of this Schedule, that: (i) it controls the necessary rights to grant the rights granted to Licensee hereunder; and (ii) to the best of Licensor’s knowledge, each Included Program, when used in the form provided by Licensor and in strict compliance with any instructions provided by Licensor, applicable laws and this Agreement, shall not under U.S. law infringe upon the trade name, trademark, copyright, music synchronization, literary or dramatic right or right of privacy of any claimant or constitutes a libel or slander of such claimant (provided that Licensor makes no representation or warranty with respect to performing rights in music, which are specifically covered by Section 17 of this Schedule). Notwithstanding anything contained herein to the contrary, Licensee acknowledges and agrees that a breach of the representations and warranties contained in this Section shall not be deemed to be a breach of this Agreement or to constitute a Licensor Event of Default under Section 19.2 of this Schedule, and Licensee’s sole remedy with respect to a breach of the representations and warranties in this Section 15 shall be that Licensor shall be required to indemnify Licensee in accordance with Section 18.1of this Schedule for any claims arising from such breach.

In the event that the other side is asking for these reps, first offer to include these under the indemnity as opposed to including them as representations and warranties.41 Often Licensees will ask for indemnification for any claims under any law that the Included Programs violate a third-party intellectual property right. While it is not a preferred opening position, we can generally give on such language for indemnification purposes only.42 If Licensee pushes back on giving any of its representations and warrantees as we have requested at Section 12, and after negotiation they do not give, then move each of the rejected reps to the indemnification section – at the least they should indemnify us for third party claims.43 Subsections (iii) through (vi) should never be limited only to third party claims, so in the event that Licensee’s indemnification obligations under this section are limited only to third party claims, then these subsections need to be broken out into a separate section so that they are not limited to third party claims. 44 We are often asked whether the license agreement can be transferred without SPE’s approval to an affiliate. If the business person in charge of the deal is okay with such a change (it may depend on how solvent we think holding companies may be) we can include the following language:

“provided that Licensee may assign any of its rights and obligations under this Agreement without consent to any entity that directly or indirectly controls, is controlled by, or is under common control with Licensee (provided that any such assignment shall not relieve Licensee of its obligations hereunder).”

We also get push back on our ability to assign without approval, but we generally do not give, and if we do, we MUST except from that any SPE’s entity’s right to assign to an affiliate without Licensee’s approval.

45 According to our litigation department, our first choice is JAMS, then ADR and then AAA. In any case, ensure that the dispute resolution service has a location in the appropriate venue.46 FOR INTERNATIONAL AGREEMENTS, remember that JAMS does not apply and we should go out with ICC in the first instance especially when using law of England and Wales.47 Please confirm with business person whether they would like to have the attorney’s fees of the prevailing party be paid by the losing party.48 Please confirm with business person whether they would like to have the attorney’s fees of the prevailing party be paid by the losing party.49 For SPT, the notice provision is first to Sony Pictures Television, 10202 West Washington Boulevard, Culver City, CA 90232, USA, Attention: President, Fax:1-310-244-6353, second [SPT LOCAL OFFICE] and third, Sony Pictures Entertainment Inc., 10202 West Washington Boulevard, Culver City, CA 90232, USA, Attention: General Counsel,

Fax: 1-310-244-0510.50 Add the following language if agreed to by the business person:

If this Agreement is terminated pursuant to this Article 26 Licensor will credit Licensee with a refundable amount to be negotiated by the parties in good faith.

51 Finance has allowed for the bracketed text with respect to security deposits to be removed, however, in all instances such changes should be run by that appropriate finance group.52 Include this provision in all international licensing deals. 53 Include this provision in all international licensing deals.

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