Common use of Television Programs Clause in Contracts

Television Programs. The materials for each Standard Definition Television Program will be subject to a non-recoupable television program servicing fee (each, a “Television Program Servicing Fee”) in the amount of one hundred dollars ($100) for each Standard Definition Television Program with a run time of one-half broadcast hour and in the amount of two hundred dollars ($200) for each Standard Definition Television Program with a run time of one broadcast hour, Delivered by CDD in accordance with Schedule D during the Term, which fee will be deemed to cover Delivery of one file, encoded in “Standard Definition” resolution (as described in more detail in Schedule D under the heading “Standard Definition Source Specifications”). Additional files that are requested by Amazon and that CDD agrees to provide will be subject to additional servicing fees as hereafter mutually agreed by the parties in writing, from time to time. With respect to each High Definition Television Program, CDD shall make available a Copy thereof as follows: (i) if a ProRes 5.1 File is available, then CDD shall make such file available; or (ii) if a ProRes 5.1 File is not available, then CDD shall make a Standard ProRes file available. From any such Copy, Amazon shall have the right to (A) create files for distribution in High Definition as set forth atin Schedule C and (B) transcode to Standard Definition as set forth in Schedule C. All costs (including, without limitation, duplication/encoding, shipping and forwarding charges, and insurance) of creating and making Source Copies and Advertising Materials for High Definition Television Programs available to Amazon (“HD TV Delivery Costs”) shall be borne solely by Amazon at the following rates: one hundred dollars ($100) for each High Definition Television Program with a run time of one-half broadcast hour and two hundred dollars ($200) for each High Definition Television Program with a run time of one broadcast hour. CDD shall invoice Amazon for Television Program Servicing Fees owed by Amazon under Section 9.3.1 and HD TV Delivery Costs owed under Section 9.3.2 and Amazon shall pay such Television Program Servicing Fees and HD Delivery Costs no later than forty-five (45) days following its receipt of such invoices from CDD. For purposes of clarification, Amazon does not own the hard drives, media or equipment, if any, used to Deliver the Source Copies, Metadata and/or Advertising Materials from CDD to Amazon. Such hard drives, media and equipment, if any, will be returned to CDD soon as practicable after the Delivery. Each Copy of the Included Programs and all Advertising Materials are the property of CDD, subject only to the limited right of use expressly permitted herein, and Amazon shall not permit any lien, charge, pledge, mortgage or encumbrance to attach thereto. In no event shall CDD be required to deliver Source Copies in any language version other than the Licensed Language version. In no event will Amazon be required to accept any Included Program in any language version other than the Licensed Language version. Upon the loss, theft or destruction (other than as required hereunder) of any Copy of an Included Program, Amazon shall promptly furnish CDD with proof of such a loss, theft or destruction by affidavit setting forth the facts thereof. In the event the Agreement is terminated for any reason, or upon CDD’s request pursuant to a Suspension Notice, Amazon shall within 45 days return or destroy, at CDD’s election, all Source Copies in its possession and provide CDD with a certificate of return or destruction (as applicable), signed by Amazon’s most senior programming officer. Notwithstanding the foregoing, CDD acknowledges that, subject to Sections 14.1 and 14.2, Amazon shall be entitled to retain archival copies of Included Programs after the expiration or termination of this Agreement solely as necessary to provide Customers, after the Term, with ongoing access to and continued downloads of Included Programs subject to a valid Customer Transaction during the Term pursuant to the Digital Locker Functionality feature of the Service and in accordance with Usage Rules. Amazon shall have the right to use or authorize the use of (a) Long-Form Promotional Previews, and (b) written summaries, extracts, synopses, photographs, logos, and trailers prepared and provided or made available by CDD or, if not prepared by CDD, approved in writing in advance by CDD (“Advertising Materials”) and Metadata and such other cast, production team, running time and other textual information regarding Included Programs prepared and provided or made available by CDD (“Supplemental Metadata”), solely for the purpose of advertising, promoting and publicizing the availability of the Included Programs on the Service and the right to advertise, publicize and promote, or authorize the advertising, publicity and promotion of the availability of any Included Program on the Service during the time periods and other restrictions specified herein. CDD shall use commercially reasonable efforts to provide to Amazon Supplemental Metadata for Included Programs it being understood, however, that CDD’s failure to do so will not, in and of itself, be deemed a breach of this Agreement. Additionally, nothing herein shall, in and of itself, prevent Amazon from (i) integrating Metadata and/or Supplemental Metadata that is otherwise publicly available or ascertainable into Amazon’s affiliated website located at ▇▇▇.▇▇▇▇.▇▇▇ and/or (ii) from allowing the owners of websites contractually affiliated with Amazon through the ▇▇▇▇▇▇.▇▇▇ Associates Program to use Advertising Materials (which use must be in compliance with the terms of this Agreement) solely in situations where such uses link back to a location on the Service on which one or more applicable Included Programs are featured and available for Customer Transactions. If CDD establishes a date prior to which no marketing or promotion may occur for any title, which (except for Delayed Pictures and Television Programs that are Included Programs) announce date shall be no later for Amazon than for any other ODRL distributor of the applicable title in the Territory (“Announce Date”), Amazon may not “pre-promote” such title, to include, without limitation: (a) solicit any pre-orders; (b) advertise referencing price or release date; or (c) use any title-related images or artwork. Violation of this provision shall constitute a material breach of the Agreement. If no Announce Date is specified by CDD, Amazon shall not pre-promote any Included Program more than 60 days prior to its Availability Date unless otherwise directed by CDD and in no event may Amazon promote any title prior to receiving an Availability Notice for such title. Advertising prior to Availability Date must provide notice of Availability Date in ad (e.g., Available July 27). Amazon shall not promote any Included Program after it is subject to Withdrawal or Television Program Withdrawal from distribution hereunder by CDD. For the avoidance of doubt, Amazon will not alter the Advertising Materials Delivered by CDD (other than non-substantive resizing of images) and shall use such Advertising Materials only as specifically allowed in this Section 10. Amazon shall not, without the prior written consent of CDD, (a) modify, edit or make any changes to the Advertising Materials (including, without limitation, to any copyright notice contained therein), or (b) promote the availability of any Included Program by means of a contest or giveaway; provided, however, that the foregoing shall not affect any contest, give-away or other promotion broadly available on the Service with respect to programs provided by content providers other than CDD. The names and likenesses of the characters, persons and other entities appearing in or connected with the production of Included Programs shall not be used separate and apart from the Advertising Materials which will be used solely for the purpose of advertising of the availability of such Included Programs, and no such name or likeness shall be used so as to constitute an endorsement or testimonial, express or implied, of any party, product or service, by “commercial tie-in” or otherwise. Amazon shall not use CDD’s name or logo or any Included Program or any part of any Included Program as an endorsement or testimonial, express or implied, by CDD, for any party, product or service including Amazon or any program service or other service provided by Amazon. Within 30 calendar days after the day on which an Included Program is subject to a Withdrawal by CDD under Section 14.1 or a Television Program Withdrawal under Section 14.2, which withdrawal requires a termination of the Digital Locker Functionality (and thus Streaming Functionality), Amazon shall destroy (or return to CDD) all Advertising Materials for such Included Program which have been supplied by CDD hereunder which are then in Amazon’s possession. Within 30 calendar days after the expiration or termination of this Agreement, Amazon shall destroy (or return to CDD) all Advertising Materials for Included Programs which are then in Amazon’s possession; provided, however, that Amazon shall be entitled to retain a copy of the same to the extent required to support the Digital Locker Functionality in a manner allowed by this Agreement. Promotions on the Service shall not denigrate any other form of program distribution (e.g., on DVD or Blu-ray). If CDD believes that any Promotion on the Service denigrates any other form of program distribution, then CDD may notify Amazon of such alleged denigration and, if Amazon does not correct such alleged denigration within 15 days of CDD’s notice, CDD may, as its sole and exclusive remedy, terminate this Agreement, which termination will be effective 5 business days after notice of termination from CDD. Nothing in this Section 10 shall act to restrict or otherwise limit any rights Amazon may have under law and any other applicable permission, provided Amazon’s exercise of such rights does not conflict with any of CDD’s rights to the Included Programs.

Television Programs. 9.3.1 The materials for each Standard Definition Television Program will be subject to a non-recoupable television program servicing fee (each, a “Television Program Servicing Fee”) in the amount of one hundred dollars ($100) for each Standard Definition Television Program with a run time of one-half broadcast hour and in the amount of two hundred dollars ($200) for each Standard Definition Television Program with a run time of one broadcast hour, Delivered by CDD in accordance with Schedule D during the Term, which fee will be deemed to cover Delivery of one file, encoded in “Standard Definition” resolution (as described in more detail in Schedule D under the heading “Standard Definition Source Specifications”). Additional files that are requested by Amazon and that CDD agrees to provide will be subject to additional servicing fees as hereafter mutually agreed by the parties in writing, from time to time. . 9.3.2 With respect to each High Definition Television Program, CDD shall make available a Copy thereof as follows: (i) if a ProRes 5.1 File is available, then CDD shall make such file available; or (ii) if a ProRes 5.1 File is not available, then CDD shall make a Standard ProRes file available. From any such Copy, Amazon shall have the right to (A) create files for distribution in High Definition as set forth atin in Schedule C and (B) transcode to Standard Definition as set forth in Schedule C. All costs (including, without limitation, duplication/encoding, shipping and forwarding charges, and insurance) of creating and making Source Copies and Advertising Materials for High Definition Television Programs available to Amazon (“HD TV Delivery Costs”) shall be borne solely by Amazon at the following rates: one hundred dollars ($100) for each High Definition Television Program with a run time of one-half broadcast hour and two hundred dollars ($200) for each High Definition Television Program with a run time of one broadcast hour. . 9.3.3 CDD shall invoice Amazon for Television Program Servicing Fees owed by Amazon under Section 9.3.1 and HD TV Delivery Costs owed under Section 9.3.2 and Amazon shall pay such Television Program Servicing Fees and HD Delivery Costs no later than forty-five (45) days following its receipt of such invoices from CDD. For purposes of clarification, Amazon does not own the hard drives, media or equipment, if any, used to Deliver the Source Copies, Metadata and/or Advertising Materials from CDD to Amazon. Such hard drives, media and equipment, if any, will be returned to CDD soon as practicable after the Delivery. Each Copy of the Included Programs and all Advertising Materials are the property of CDD, subject only to the limited right of use expressly permitted herein, and Amazon shall not permit any lien, charge, pledge, mortgage or encumbrance to attach thereto. In no event shall CDD be required to deliver Source Copies in any language version other than the Licensed Language version. In no event will Amazon be required to accept any Included Program in any language version other than the Licensed Language version. Upon the loss, theft or destruction (other than as required hereunder) of any Copy of an Included Program, Amazon shall promptly furnish CDD with proof of such a loss, theft or destruction by affidavit setting forth the facts thereof. In the event the Agreement is terminated for any reason, or upon CDD’s request pursuant to a Suspension Notice, Amazon shall within 45 days return or destroy, at CDD’s election, all Source Copies in its possession and provide CDD with a certificate of return or destruction (as applicable), signed by Amazon’s most senior programming officer. Notwithstanding the foregoing, CDD acknowledges that, subject to Sections 14.1 and 14.2, Amazon shall be entitled to retain archival copies of Included Programs after the expiration or termination of this Agreement solely as necessary to provide Customers, after the Term, with ongoing access to and continued downloads of Included Programs subject to a valid Customer Transaction during the Term pursuant to the Digital Locker Functionality feature of the Service and in accordance with Usage Rules. Amazon shall have the right to use or authorize the use of (a) Long-Form Promotional Previews, and (b) written summaries, extracts, synopses, photographs, logos, and trailers prepared and provided or made available by CDD or, if not prepared by CDD, approved in writing in advance by CDD (“Advertising Materials”) and Metadata and such other cast, production team, running time and other textual information regarding Included Programs prepared and provided or made available by CDD (“Supplemental Metadata”), solely for the purpose of advertising, promoting and publicizing the availability of the Included Programs on the Service and the right to advertise, publicize and promote, or authorize the advertising, publicity and promotion of the availability of any Included Program on the Service during the time periods and other restrictions specified herein. CDD shall use commercially reasonable efforts to provide to Amazon Supplemental Metadata for Included Programs it being understood, however, that CDD’s failure to do so will not, in and of itself, be deemed a breach of this Agreement. Additionally, nothing herein shall, in and of itself, prevent Amazon from (i) integrating Metadata and/or Supplemental Metadata that is otherwise publicly available or ascertainable into Amazon’s affiliated website located at ▇▇▇.▇▇▇▇.▇▇▇ and/or (ii) from allowing the owners of websites contractually affiliated with Amazon through the ▇▇▇▇▇▇.▇▇▇ Associates Program to use Advertising Materials (which use must be in compliance with the terms of this Agreement) solely in situations where such uses link back to a location on the Service on which one or more applicable Included Programs are featured and available for Customer Transactions. If CDD establishes a date prior to which no marketing or promotion may occur for any title, which (except for Delayed Pictures and Television Programs that are Included Programs) announce date shall be no later for Amazon than for any other ODRL distributor of the applicable title in the Territory (“Announce Date”), Amazon may not “pre-promote” such title, to include, without limitation: (a) solicit any pre-orders; (b) advertise referencing price or release date; or (c) use any title-related images or artwork. Violation of this provision shall constitute a material breach of the Agreement. If no Announce Date is specified by CDD, Amazon shall not pre-promote any Included Program more than 60 days prior to its Availability Date unless otherwise directed by CDD and in no event may Amazon promote any title prior to receiving an Availability Notice for such title. Advertising prior to Availability Date must provide notice of Availability Date in ad (e.g., Available July 27). Amazon shall not promote any Included Program after it is subject to Withdrawal or Television Program Withdrawal from distribution hereunder by CDD. For the avoidance of doubt, Amazon will not alter the Advertising Materials Delivered by CDD (other than non-substantive resizing of images) and shall use such Advertising Materials only as specifically allowed in this Section 10. Amazon shall not, without the prior written consent of CDD, (a) modify, edit or make any changes to the Advertising Materials (including, without limitation, to any copyright notice contained therein), or (b) promote the availability of any Included Program by means of a contest or giveaway; provided, however, that the foregoing shall not affect any contest, give-away or other promotion broadly available on the Service with respect to programs provided by content providers other than CDD. The names and likenesses of the characters, persons and other entities appearing in or connected with the production of Included Programs shall not be used separate and apart from the Advertising Materials which will be used solely for the purpose of advertising of the availability of such Included Programs, and no such name or likeness shall be used so as to constitute an endorsement or testimonial, express or implied, of any party, product or service, by “commercial tie-in” or otherwise. Amazon shall not use CDD’s name or logo or any Included Program or any part of any Included Program as an endorsement or testimonial, express or implied, by CDD, for any party, product or service including Amazon or any program service or other service provided by Amazon. Within 30 calendar days after the day on which an Included Program is subject to a Withdrawal by CDD under Section 14.1 or a Television Program Withdrawal under Section 14.2, which withdrawal requires a termination of the Digital Locker Functionality (and thus Streaming Functionality), Amazon shall destroy (or return to CDD) all Advertising Materials for such Included Program which have been supplied by CDD hereunder which are then in Amazon’s possession. Within 30 calendar days after the expiration or termination of this Agreement, Amazon shall destroy (or return to CDD) all Advertising Materials for Included Programs which are then in Amazon’s possession; provided, however, that Amazon shall be entitled to retain a copy of the same to the extent required to support the Digital Locker Functionality in a manner allowed by this Agreement. Promotions on the Service shall not denigrate any other form of program distribution (e.g., on DVD or Blu-ray). If CDD believes that any Promotion on the Service denigrates any other form of program distribution, then CDD may notify Amazon of such alleged denigration and, if Amazon does not correct such alleged denigration within 15 days of CDD’s notice, CDD may, as its sole and exclusive remedy, terminate this Agreement, which termination will be effective 5 business days after notice of termination from CDD. Nothing in this Section 10 shall act to restrict or otherwise limit any rights Amazon may have under law and any other applicable permission, provided Amazon’s exercise of such rights does not conflict with any of CDD’s rights to the Included Programs.