Common use of Television Programs Clause in Contracts

Television Programs. With respect to each Included Program that is a High Definition Television Program, CDD shall make available a Source Copy thereof as follows: (a) with respect to the ProRes file format (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 and (b) with respect to the Approved Non-ProRes File format, if a Approved Non-ProRes File is available, then CDD shall make such file available. From any such Source Copy, Amazon shall have the right to (A) create files for distribution in High Definition as set forth in Schedule C and (B) transcode to Standard Definition as set forth in Schedule C. 4K Included Programs. With respect to 4K Included Programs, each Source Copy shall be in the form of an encoded digital file in the IMF format for each 4K Included Program (“4K Picture Master”) and the Advertising Materials shall be in the Approved 4K Resolution, all of which shall be supplied at Amazon’s cost. [Do we want to charge a flat fee for materials instead of billing cost?] [Will these be provided 15 days prior to Avail Date like the other materials?] 4K Picture Masters will be delivered to Amazon with, at a minimum, Rec 709 10-bit color space. Amazon will only use the 4K Picture Masters in connection with the distribution of 4K Included Programs in the Approved 4K Resolution pursuant to the 4K Rights. For the avoidance of doubt, 4K Picture Masters may not be used in connection with exhibition of any Included Program in Standard Definition or High Definition resolution without CDD’s prior written approval. Amazon will consult with CDD regarding its encoding (process and quality) of 4K Included Programs. In the event Amazon agrees to pay the costs to another Major Studio of converting non-4K catalog assets or other assets to create 4K masters, Amazon will pay CDD, at CDD’s option, the same costs for the 4K conversion of a commensurate number of 4K Included Programs created by CDD to date. From any 4K Picture Master, Amazon shall have the right to create files for distribution in Approved 4K Resolution as set forth in [Schedule C][do we have a new schedule for this?]. In no event may Amazon scale any lower resolution content up to higher resolution content without prior written approval from CDD. For example, Amazon may not scale High Definition versions up to 3840 x 2160 nor may Amazon scale Standard Definition versions up to High Definition. 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 Source 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 this 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. Advertising Materials for any 4K Included Program are either provided in the Approved 4K Resolution or provided solely for promotion of such program in the Approved 4K Resolution may only be used to advertise, promote and publicize the availability of such 4K Included Program in the Approved 4K Resolution on the Service on an ODRL or VOD basis. 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 or VOD 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 this 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, giveaway 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 disc). 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. Amazon will give prominent placement and promotional treatment for the 4K Included Programs that will be no less favorable than that provided for other providers’ 4K audio-visual content on an ODRL or VOD basis. In addition, to the extent permitted by applicable law, Amazon will implement additional promotional programs requested by CDD throughout the Term to support and promote the availability of 4K Included Programs on the Service, including providing: Dedicated email to purchasers of 4K televisions highlighting 4K Included Programs on Amazon Instant Video (“AIV”); 4K content mass email to all Electronics customers; 4K email to all AIV users featuring 4K Included Programs and Sony devices; Hero placement within Amazon’s AIV weekly email; [GNO flyout] for a minimum of 2 weeks (on AIV Homepage + Amazon’s Electronics & Computers categories); Dedicated 4K storefront on Amazons’ AIV Homepage for 4K Included Programs (searchable + supported with placement to drive to the page) with no expiration; Promotion of 4K Included Programs on 4K Sony TV product pages within Amazon; Twin Hero on Amazon’s AIV Homepage, Shop Instant Video, Shop Movies and Shop TV (#1 position) for 2 weeks; Device Hero placement [where?] for 2 weeks; and Slideshow Billboard placement on Amazon’s TV & Video homepage. [Need some help describing these marketing items in a legal way.]

Television Programs. With respect to each Included Program that is a High Definition Television Program, CDD shall make available a Source Copy thereof as follows: (a) with respect to the ProRes file format (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 and (b) with respect to the Approved Non-ProRes File format, if a Approved Non-ProRes File is available, then CDD shall make such file available. From any such Source Copy, Amazon shall have the right to (A) create files for distribution in High Definition as set forth in Schedule C and (B) transcode to Standard Definition as set forth in Schedule C. 4K Included Programs. With respect to 4K Included Programs, each Source Copy shall be in the form of an encoded digital file in the IMF format for each 4K Included Program (“4K Picture Master”) and the Advertising Materials shall be in the Approved 4K Resolution, all of which shall be supplied at Amazon’s cost. [Are the ads going to be in 4K resolution? Do we want to charge a flat fee for materials instead of billing cost?] [Will these be provided 15 days prior to Avail Date like the other materials?] 4K Picture Masters will be delivered to Amazon with, at a minimum, Rec 709 10-bit color space. Amazon will only use the 4K Picture Masters in connection with the distribution of 4K Included Programs in the Approved 4K Resolution pursuant to the 4K Rights. For the avoidance of doubt, 4K Picture Masters may not be used in connection with exhibition of any Included Program in Standard Definition or High Definition resolution without CDD’s prior written approval. Amazon will consult with CDD regarding its encoding (process and quality) of 4K Included Programs. In the event Amazon agrees to pay the costs to another Major Studio of converting non-4K catalog assets or other assets to create 4K masters, Amazon will pay CDD, at CDD’s option, the same costs for the 4K conversion of a commensurate number of 4K Included Programs created by CDD to date. From any 4K Picture Master, Amazon shall have the right to create files for distribution in Approved 4K Resolution as set forth in [Schedule C][do we have a new schedule for this?]. In no event may Amazon scale any lower resolution content up to higher resolution content without prior written approval from CDD. For example, Amazon may not scale High Definition versions up to 3840 x 2160 nor may Amazon scale Standard Definition versions up to High Definition. 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 Source 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 this 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. Advertising Materials for any 4K Included Program [that are either provided in the Approved 4K Resolution or provided solely for promotion of such program in the Approved 4K Resolution Resolution] may only be used to advertise, promote and publicize the availability of such 4K Included Program in the Approved 4K Resolution on the Service on an ODRL or VOD basis. 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 or VOD 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 this 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, giveaway 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 disc). 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. Amazon will give prominent placement and promotional treatment for the 4K Included Programs that will be no less favorable than that provided for other providers’ 4K audio-visual content on an ODRL or VOD basis. In addition, to the extent permitted by applicable law, Amazon will implement additional promotional programs requested by CDD throughout the Term to support and promote the availability of 4K Included Programs on the Service, including providingproviding [Parties to discuss agree on language]: Dedicated email to purchasers of 4K televisions highlighting 4K Included Programs on Amazon Instant Video (“AIV”); 4K content mass email to all Electronics customers; 4K email to all AIV users featuring 4K Included Programs and Sony devices; Hero placement within Amazon’s AIV weekly email; [GNO flyout] for a minimum of 2 weeks (on AIV Homepage + Amazon’s Electronics & Computers categories); Dedicated 4K storefront on Amazons’ AIV Homepage for 4K Included Programs (searchable + supported with placement to drive to the page) with no expiration; Promotion of 4K Included Programs on 4K Sony TV product pages within Amazon; Twin Hero on Amazon’s AIV Homepage, Shop Instant Video, Shop Movies and Shop TV (#1 position) for 2 weeks; Device Hero placement [where?] for 2 weeks; and Slideshow Billboard placement on Amazon’s TV & Video homepage. [Need some help describing these marketing items in a legal way.]