TVN -EUROCINEMA AGREEMENT
Exhibit
10.A.01
TVN
-EUROCINEMA AGREEMENT
This
agreement (the “Agreement”), dated as of March 14, 2005 (the “Effective Date”),
is entered into by and between Eurocinema Corporation, a Delaware Corporation,
with offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (“Eurocinema”), and TVN ENTERTAINMENT CORPORATION, a Delaware
corporation, with offices located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“TVN”) (each, a “Party” and collectively, the
“Parties”).
WHEREAS,
Eurocinema manages and operates on-demand programming services consisting
of
subtitled and English-language dubbed foreign films not distributed by a
major
Hollywood studio, and accompanying introductory and additional material (each
a
“Program”);
WHEREAS,
Eurocinema wishes to distribute certain Programs to owners/operators of cable
television systems or other systems which distribute video programming
(“Operators”) to subscribers/customers for use on a video-on-demand (“VOD”)
basis;
WHEREAS,
TVN is
engaged in the business of, among other things, acquisition, delivery and
management (e.g., encoding, asset and platform management, and digital file
transport) of video grade digital files (the “TVN Services”) for use in video
distribution systems offering VOD, including on a pay-per-view basis (“a la
carte”), Subscription VOD (“SVOD”) basis, and/or as part of a VOD tier to some
or all subscribers (“Tier VOD”);
WHEREAS,
the
receiving equipment that is owned or otherwise controlled by TVN, including,
without limitation, the software and hardware and any subsequent revisions
and
upgrades thereto (the “TVN Equipment”) used by TVN in connection with the
delivery of VOD programming is located in the facilities of Operators (each
a
“TVN System”);
WHEREAS,
Operators receive VOD programming from TVN pursuant to agreements between
TVN
and the Operators (each a “TVN Affiliate Agreement”), and the Operators
distribute VOD programming to subscribers/customers (“Subscribers”) via a VOD
server owned and operated by such Operators (a “VOD Server”);
WHEREAS,
the
agreements between Eurocinema and certain Operators anticipate that a third
party may be licensed to deliver the encoded Programs owned or otherwise
controlled by Eurocinema with a run time of a twenty minutes or greater (“VOD
Titles”) as a part of Eurocinema’s VOD programming services (the “Eurocinema VOD
Service”) to the systems of such Operators; and
WHEREAS,
Eurocinema wishes to utilize the TVN Services to deliver Eurocinema’s VOD Titles
to select TVN Systems of Operators licensed to offer the VOD Titles to their
Subscribers.
NOW
THEREFORE,
TVN and
Eurocinema agree that the TVN Services shall be used to deliver Eurocinema’s VOD
Titles to the TVN Equipment of the authorized Systems pursuant to the following
terms and conditions:
| 1. |
GRANT
OF RIGHTS.
|
| (a) |
Eurocinema
hereby grants to TVN the exclusive, non-transferable license to encode
and
deliver VOD Titles to the authorized TVN Systems identified in Schedule
A
attached hereto (the “Systems”), which Schedule is incorporated herein by
reference and which may be amended by Eurocinema from time to time,
provided, with respect to adding Systems, that such System is a TVN
System
and Eurocinema provides at least thirty (30) days written notice
of an
update to Schedule A.
|
| (b) |
Except
as otherwise specified in this Agreement, the Parties hereto acknowledge
and understand that TVN has not and shall not acquire any proprietary
rights in the copywrighted material, trademarks, service marks, and
the
other intellectual property included in the Programs and the Eurocinema
VOD Service, including but not limited to the names of certain Programs,
by reason of this Agreement.
|
| (c) |
Eurocinema
reserves all rights in and to the Programs and other intellectual
property
of Eurocinema for its own use, except for the specific rights that
are
expressly granted to TVN under this Agreement.
In
the event that during the term of this Agreement, Eurocinema chooses
to
alter, modify, change or replace the “Eurocinema” name, ▇▇▇▇ or logo; that
alteration, modification, change or replacement, will have no legal
effect
on the terms and conditions of this Agreement and the obligations
of the
parties hereunder; provided that this section does not authorize
an
assignment of this Agreement that is not in compliance with Section
12
below.
|
| 2. |
DELIVERY
OF VOD TITLES TO
TVN
|
| (a) |
Eurocinema
will deliver the VOD Titles at Eurocinema’s cost to TVN in accordance with
TVN’s Content Provider Requirements (the “CPR,” attached hereto as Exhibit
A, and future releases) and shall, in Eurocinema’s sole discretion,
determine the VOD Titles that make up the Eurocinema VOD Service
and any
additional VOD Titles for which Eurocinema shall use the TVN Services
hereunder.
|
2
| 3. |
TVN
SERVICES
|
| (a) |
For
all VOD Titles for which Eurocinema utilizes TVN’s encoding services, TVN
shall encode the VOD Titles in compliance with generally accepted
standards of good practice and according to parameters specified
in the
CableLabs Video On Demand Content Specification Version 1.1 (“CLI 1.1”) or
future releases thereof.
|
| (b) |
TVN
shall provide the TVN Services as set forth on the attached Schedule
B for
management and delivery of VOD Titles to the
Systems.
|
| (c) |
TVN
shall distribute the VOD Titles and associated Metadata to the Systems
as
delivered to TVN by Eurocinema pursuant to the terms and conditions
of
this Agreement and in accordance with TVN’s multicast delivery schedule
prior to the VOD Titles exhibition start date; provided that Eurocinema
is
in compliance with Section 2 hereof.
|
| (d) |
TVN
is responsible for the delivery of the VOD Titles to the appropriate
TVN
Systems. TVN is not responsible for delivery in the event that any
TVN
System is unwilling or unable to accept the VOD Titles from the TVN
Equipment into the VOD Server in the applicable System due to reasons
including, but not limited to, technical issues, outside the immediate
control of TVN.
|
| (e) |
Should
Eurocinema wish to deliver a VOD Title without having complied with
the
requirements of Section 2 of this Agreement or at times other than
as
specified in TVN’s multicast delivery schedule (a “Special Delivery”), TVN
will, in its sole discretion, determine if it can meet Eurocinema’s
request, and if so will provide the Special Delivery on the terms
set
forth on Schedule C Attached hereto.
|
| (f) |
If
TVN is notified by an Operator to not transport one or more VOD Titles
to
one or more of its Systems, TVN shall notify Eurocinema of such
instructions, and will comply with such instructions until such time
that
Operator notifies TVN otherwise. Nothing herein shall require TVN
to
violate its obligations set forth in a TVN Affiliate
Agreement.
|
| (g) |
If
Eurocinema notifies TVN that one or more Systems are no longer authorized
to distribute the Eurocinema VOD Service VOD Titles, then TVN shall
promptly cease transporting VOD Titles to such
System(s).
|
| (h) |
TVN
shall maintain the TVN Equipment in good working order. TVN shall
not edit
or alter the content of any VOD Title. Except as otherwise permitted
hereunder or as necessary for TVN to provide the TVN Services, TVN
shall
not, and shall not authorize other persons to copy, tape or otherwise
reproduce any part of any VOD Title without Eurocinema’s prior written
authorization.
|
3
| (i) |
As
an optional service, TVN will provide centralized storage of VOD
Titles at
TVN’s facility. Eurocinema shall notify TVN in writing of its desire
to
utilize this option for the VOD Titles.
|
| 4. |
EUROCINEMA’S
USE OF TVN SERVICES
|
| (a) |
Eurocinema
shall use the TVN Services exclusively for the encoding of Eurocinema
VOD
Titles.
|
| (b) |
Eurocinema
shall use the TVN Services exclusively for the asset management and
transport of Eurocinema VOD Titles to Operators subject to the
following:
|
| i) |
TVN
shall deliver the VOD Titles to all TVN
Systems.
|
| ii) |
In
the event that a non-TVN System is unable to receive the Eurocinema
VOD
Titles via the TVN Services, Eurocinema may instruct TVN to provide
the
VOD Titles encoded pursuant to Section 3(a) hereof to Eurocinema
on DVD
(or other mutually agreed medium) or to transport the VOD Titles
to a
mutually agreed 3rd
party for transport to such non-TVN Systems. TVN shall not be responsible
for costs associated with such 3rd
party transport.
|
| iii) |
With
respect to Time Warner only, until such time as Time Warner becomes
a TVN
System, Eurocinema may also require TVN to: (1) deliver the VOD Titles
encoded pursuant to Section 3(a) hereof on DVD to iNDemand for delivery
to
Time Warner systems or (2) deliver the VOD Titles via the TVN Services
to
GDMX for secondary transport to Time Warner systems. TVN shall not
be
responsible for costs associated with such secondary
transport.
|
| (c) |
TVN
shall encode and/or transport up to a total of twenty (20) hours
of run
time of long form VOD Titles (i.e. twenty minutes of run time or
longer)
per month, refreshed at no more than twenty five percent (25%) per
week.
In the event Eurocinema wishes to encode and transport more than
twenty
(20) hours in a given month, TVN may accommodate such needs, at TVN’s sole
discretion. In the event that Eurocinema wishes to encode and transport
more than twenty (20) hours per month on a regular basis, Eurocinema
shall
provide no less than sixty (60) days prior written notice of its
intention, and subject to TVN availability, TVN shall expand Eurocinema’s
allotment appropriately, and the minimum monthly transport/encoding
fee
(see Section 5) shall increase
proportionately.
|
| (d) |
Eurocinema’s
initial VOD offering to Operators will consist of twenty (20) hours
of VOD
Titles, refreshed at a rate of thirty-three percent (33%) per month.
The
offering may be expanded to a total of thirty (30)
hours.
|
| (e) |
Eurocinema
may offer VOD Titles to Operators for distribution to Subscribers
on an
a
la carte,
SVOD or Tier VOD basis. In the event that Eurocinema desires to offer
the
VOD Titles for distribution by Operators to Subscribers on a different
economic model, the Parties will negotiate in good faith the terms
under
which such alternative model may be
offered.
|
4
| (f) |
Unless
otherwise mutually agreed by the Parties, VOD Titles may not include
(i)
theatrically released feature films distributed by the major United
States
based motion picture studios offered on an SVOD or VOD Tier basis
or (ii)
adult content.
|
| (g) |
Eurocinema
will first be made available to Subscribers on July 1, 2005 (the
“Launch
Date”). With at least forty-five (45) prior written notice, Eurocinema
may
elect to move the Launch Date to an earlier date. Within thirty (30)
days
of the Effective Date, Eurocinema will provide to TVN: i) a complete
set
of marketing materials for the initial offering of VOD Titles; and
ii) a
complete set of VOD Title masters for the initial month of distribution
in
compliance with the CPR, and (iii) all requirements as outlined in
the CPR
for the initial month’s content. TVN will have no obligation to include
the fact that it is distributing the VOD Titles in its marketing
materials
until such time that Eurocinema is in compliance with this
Section.
|
| (h) |
Eurocinema
is responsible for performing all marketing and affiliate sales with
respect to the Eurocinema VOD Service. Eurocinema will provide TVN
with
promotional materials, air checks, programming summaries and any
other
promotional materials that it determines are necessary for TVN to
support
Eurocinema’s affiliate sales efforts. TVN agrees to incorporate
information regarding the Eurocinema VOD Service into its standard
affiliate marketing materials. Nothing in this Section will require
TVN to
provide Eurocinema with affiliate sales
support.
|
| (i) |
TVN
will have the right to license the Eurocinema VOD Service directly
to
Operators, on terms and conditions to which the Parties mutually
agree.
TVN will notify Eurocinema in writing in the event that it wishes
to
directly license the Eurocinema VOD Service to an Operator, along
with the
terms and conditions under which it proposes. Eurocinema will notify
TVN
within five (5) business days of its approval or rejection of the
terms;
and a failure by Eurocinema to respond shall be deemed acceptance.
Eurocinema will only reject the terms on a reasonable basis. Eurocinema
agrees to reasonably cooperate with TVN to come to terms with the
proposed
Operator to distribute the Eurocinema VOD
Service.
|
| 5. |
FEES
|
| (a) |
Each
month, Eurocinema shall pay TVN the greater of Services Fees or Revenue
Share as defined below.
|
| (b) |
Services
Fees.
|
| i) |
Eurocinema
shall pay TVN encoding/transport fees of six hundred and fifty-five
dollars ($655) per hour of run time of VOD Titles. Eurocinema will
pay
each month a minimum of the equivalent of ten (10) hours of
encoding/transport fees.
|
5
| ii) |
Eurocinema
shall pay TVN a remote asset management fee of Fifty Dollars ($50.00)
per
TVN receipt location per month.
|
| (c) |
Revenue
Share.
|
| i) |
For
VOD Titles offered to Subscribers on an SVOD basis, Eurocinema shall
pay
TVN ten percent (10%) of the total amount paid to Operators for
subscription to the Eurocinema VOD Service with a minimum payment
to TVN
of fifty cents ($0.50) per month per subscriber to the SVOD package.
|
| ii) |
In
the event that any Operator pays Eurocinema a fee to offer the Eurocinema
VOD Service to its Subscribers, Eurocinema shall pay TVN the greater
of
ten percent (10%) of the total fee paid or $0.005 per VOD-enabled
Subscriber of the applicable Operator.
|
| iii) |
For
VOD Titles offered on an a la carte basis, Eurocinema shall pay TVN
ten
percent (10%) of the gross retail price paid by Subscribers with
a minimum
payment to TVN of thirty cents ($0.30) per Subscriber
buy.
|
| iv) |
For
revenue paid to Eurocinema for advertising or sponsorships incorporated
into or associated with the VOD Titles and any merchandising sales
generated by distribution of the VOD Titles, Eurocinema will pay
TVN ten
percent (10%) of such revenue.
|
| v) |
TVN’s
revenue share shall continue through the later of the termination
of this
Agreement or each Operator agreement to carry the Eurocinema VOD
Service
signed during the Term.
|
| vi) |
In
the event that TVN enters into a direct license agreement with an
Operator
pursuant to Section 4(i) above, TVN shall retain fifteen percent
(15%) of
gross revenue generated.
|
| (d) |
Additional
Fees
|
| i) |
If
Eurocinema requests delivery of encoded VOD Titles on DVD or other
mutually agreed physical media pursuant to Section 4(b) hereof, Eurocinema
shall pay TVN one hundred and ten dollars ($110) per unit of physical
media (generally up to six (6) hours of run time), plus ten dollars
($10)
per VOD Title.
|
| ii) |
In
the event that Eurocinema uses TVN for storage of VOD Titles, Eurocinema
shall pay TVN Four Dollars and Fifty Cents ($4.50) per hour of run
time
per month.
|
6
| iii) |
In
the event that Eurocinema fails to meet its requirements under Section
4(g) hereof, Eurocinema will pay TVN a slotting fee of ten thousand
dollars ($10,000) per month until these requirements are
met.
|
| (e) |
All
charges are exclusive of applicable federal, state, and local sales,
use,
excise, gross receipts, and other taxes ("Taxes") that may apply.
Taxes
due by law must be properly invoiced at the same time as the fees
or
charges on which such Taxes are based. In no event will Taxes include
any
taxes or tax-like surcharges determined by TVN’s income, net worth,
franchise or property. If Eurocinema provides TVN with a duly authorized
exemption certificate, TVN will exempt Eurocinema in accordance with
law.
|
| 6. |
PAYMENTS
AND REPORTING
|
| (a) |
TVN
shall invoice Eurocinema the appropriate Services Fees owed to TVN
based
upon the schedule of delivery of VOD Titles contained in the Eurocinema
VOD Service on the first day of the month in which the TVN Services
will
be provided. Eurocinema shall pay TVN within thirty (30) days of
receiving
the invoice. Eurocinema shall further remit to TVN a complete report
detailing a la carte buy rates, SVOD take rates, fees paid by Operators,
subscriber distribution, views by title, and any other information
necessary to compute
the proper amount owed under Section 5 above within thirty (30) days
of
the end of the month in which Eurocinema receives reporting and payment
from Operators. Eurocinema will pay TVN all amounts owed with the
reporting to the extent that the reporting indicates that Eurocinema
owes
additional amounts to TVN for the applicable
month.
|
| (b) |
TVN
and Eurocinema shall each keep and maintain complete and accurate
books
and records for determining the fees owed during the entire term
of this
Agreement and for an additional period of one (1) year. Each Party
may
charge the other late charges of the lesser of (i) one and one half
percent (1.5%) per month or (ii) the maximum percentage allowable
under
applicable law for fees not paid in a timely manner. Each Party,
or its
authorized representative, shall have the right once in any twelve
month
period to inspect, audit, and copy such books and records, directly
related to this Agreement, of the other during normal business hours
upon
not less than thirty (30) days’ prior written
notice.
|
| (c) |
During
the initial twelve (12) months of the Term of this Agreement, Eurocinema
will fund a deposit account with TVN with an amount equal to four
months
of the minimum fees due under this Agreement, with the initial deposit
due
on or before May 1, 2005. Without waiving any of its rights under
this
Agreement, in the event that Eurocinema is in default under this
Agreement, TVN shall be entitled to apply all owed amounts against
the
deposit account. Eurocinema shall be obligated to immediately replenish
the deposit accounts with all amounts applied against the deposit
and pay
all other amounts owed and outstanding.
|
7
| (d) |
In
the event that TVN enters into a direct license agreement with an
Operator
pursuant to Section 4(i) herein, TVN shall report to and pay Eurocinema
its share of the license fees based upon the amounts collected by
TVN from
Operators for Subscriber orders within thirty (30) days of receipt
of
reporting and funds by TVN.
|
| 7. |
PUBLIC
ANNOUNCEMENTS
|
The
Parties agree to issue a press release regarding this Agreement. Neither
Party
shall issue a news release concerning this Agreement without the prior written
approval of the other.
| 8. |
REPRESENTATIONS
AND WARRANTIES; INDEMNIFICATION; LIMIT OF LIABILITY
|
| (a) |
Each
Party represents and warrants to the other Party that (i) such Party
has
the right to enter into this Agreement and to perform fully all of
its
obligations under the Agreement; (ii) there are no claims, litigation
or
other proceedings pending or threatened that would adversely affect
the
other Party’s rights or interests hereunder; and (iii) it is under no
contractual or other legal obligation that in any way interferes
with its
ability to fully, promptly and completely perform
hereunder.
|
| (b) |
Eurocinema
represents and warrants that it is a corporation duly organized and
validly existing under the laws of the State of ____________.
Eurocinema further represents and warrants that: (i) Eurocinema has
the
right to grant the rights hereunder free and clear of any and all
claims
by any third party, and (ii) none of the VOD Titles provided by Eurocinema
to TVN under this Agreement will: (a) be libelous, slanderous, obscene,
defamatory or indecent; or (b) violate or infringe any civil or property
rights, copyrights (including, without limitation, music synchronization
and performance rights and dramatic and non-dramatic music rights),
trademark rights, patent rights, rights of privacy, or other rights
of any
person or entity.
|
| (c) |
Eurocinema
shall indemnify, defend and hold harmless TVN and its officers, directors,
shareholders, employees and agents from and against any and all losses,
settlements, claims, actions, suits, proceedings, investigations,
judgments, awards, damages and liabilities (collectively, “Losses” and,
individually, a “Loss”) that are sustained or incurred by or asserted
against any of them and that arise out of (i) any breach of this
Agreement
by Eurocinema or (ii) the content of the VOD Titles (including, without
limitation, any Loss arising out of libel, slander, defamation, indecency,
obscenity, invasion of right of privacy or publicity, or infringement
or
violation of copyrights, music synchronization or performance rights,
trademark rights, or patent rights) and shall reimburse them for
any and
all legal, accounting and other fees, costs and expenses (collectively,
“Expenses”) reasonably incurred by any of them in connection with
investigating, mitigating or defending any such
Loss.
|
8
| (d) |
TVN
shall indemnify, defend, and hold harmless Eurocinema and its affiliates
(including its parent or controlling companies and related entities),
officers, directors, shareholders, employees and agents from and
against
any and all Losses which are sustained or incurred by or asserted
against
any of them and which arise out of any breach of this Agreement by
TVN and
shall reimburse them for any and all Expenses reasonably incurred
by any
of them in connection with investigating, mitigating or defending
any such
Loss.
|
| (e) |
Promptly
after receipt by a Party of notice of the commencement of any action,
suit, proceeding or investigation in respect of which a claim for
indemnification may be made hereunder by it or its affiliates, officers,
directors, shareholders, employees or agents, such Party shall give
written notice thereof to the other Party; but the failure to so
notify
the other Party shall not relieve the other Party from any liability
or
obligation which the other Party may have to any indemnified person
(i)
otherwise than under this Agreement or (ii) under this Agreement
except to
the extent of any material prejudice to the other Party resulting
from
such failure. If any such action, suit, proceeding or investigation
is
brought against an indemnified person, the indemnifying Party shall
be
entitled to participate therein and, if it wishes to assume the defense
thereof with counsel satisfactory to the indemnified person (who
shall
not, except with the consent of the indemnified person, be counsel
to the
indemnified person) and gives written notice to the indemnified person
of
its election so to assume the defense thereof within fifteen (15)
days
after notice shall have been given to it by the indemnified person
pursuant to the preceding sentence, shall be entitled to assume the
defense thereof. Each indemnified person shall be obligated to cooperate
reasonably with the indemnifying Party, at the expense of the indemnifying
Party, in connection with such defense and the compromise or settlement
of
any such action, suit, proceeding or investigation. The indemnifying
Party
shall not enter into any settlement that imposes any liability on
the
indemnified Party or admits to any wrongdoing by the indemnified
Party
without the prior written consent of the indemnified
Party.
|
| (f) |
Neither
Party shall, for any reason or under any legal theory, be liable
to the
other Party for any punitive damages.
|
| (g) |
This
Section 8 shall survive the expiration or earlier termination of
this
Agreement.
|
| 9. |
TERM;
TERMINATION
|
| (a) |
Subject
to the terms and conditions herein, the term of this Agreement shall
commence on the Effective Date and end on the fifth anniversary of
the
date that VOD Titles under this Agreement are first made available
to
Subscribers (the “Term”). Further, the Term shall automatically be
extended for additional one (1) year periods, unless written notice
of
termination is given by either Party at least ninety (90) days prior
to
the scheduled date of termination.
|
9
| (b) |
Either
Party shall have the right to terminate this Agreement by giving
written
notice to the other Party if the other Party has materially breached
this
Agreement and such breach shall not have been fully cured; provided,
however, that, if such breach is fully curable, such Party shall
not have
the right to terminate this Agreement unless such Party shall have
given
written notice to the other Party of such breach and the other Party
shall
have failed to fully cure such breach within thirty (30) days after
such
notice shall have been given.
|
| (c) |
If
a Party (i) makes a general assignment for the benefit of creditors,
(ii)
has appointed, voluntarily or involuntarily, any trustee, receiver,
to it
or a substantial part of its property, (iii) files, or has filed
against
it, a voluntary or involuntary petition in bankruptcy or (iv) makes
any
arrangement or otherwise becomes subject to any proceedings under
the
bankruptcy, insolvency, reorganization or similar laws of the United
States or any state, and the Party fails to have any involuntary
proceeding dismissed within ninety (90) days of service on the Party
of
notice of such involuntary proceeding, then the other Party shall
have the
right at any time thereafter to terminate this Agreement by giving
written
notice to such Party.
|
| (d) |
This
Section 9(d) and Sections 8, 9(e), 10, 13, 15, 17, 18 and 19 shall
survive
the expiration or earlier termination of this Agreement for any
reason.
|
| (e) |
Upon
the termination of this Agreement, any amounts then due hereunder
shall
become immediately due and payable. Upon the expiration or earlier
termination of this Agreement, TVN shall immediately discontinue
the
delivery of the VOD Titles. Not later than thirty (30) days after
the
expiration or earlier termination of this Agreement, any copies of
the VOD
Titles in TVN’s possession shall be destroyed or erased.
|
| 10. |
CHOICE
OF LAW
|
This
Agreement shall be construed in accordance with the laws of the State of
California, applicable to contracts entered into and to be performed therein.
Each
Party hereby (i)
agrees
that any action, litigation or proceeding arising out of or relating to this
Agreement may be instituted only in any state or federal court sitting within
the County of Los Angeles; (ii)
waives
any objection it might now or hereafter have to the venue of any such
litigation, action or proceeding; (iii)
irrevocably submits to the jurisdiction of any such court in any such
litigation, action or proceeding; and (iv)
waives
any claim or defense of inconvenient forum.
10
| 11. |
INDEPENDENT
CONTRACTOR
|
The
Parties hereto are independent contractors. Nothing in this Agreement may
be
construed to make the Parties partners or joint venturers or to make either
Party liable for the obligations, acts or activities of the other.
| 12. |
ASSIGNMENT
|
This
Agreement, including both its obligations and benefits, shall inure to the
benefit of and be binding upon the Parties and their respective successors,
transferees and assigns, except that neither this Agreement nor either Party’s
rights or obligations hereunder shall be assigned or transferred by Eurocinema
without the prior written consent of TVN; provided, however, no consent shall
be
necessary in the event of an assignment to a successor or transferor entity
resulting from a merger, acquisition, consolidation or sale of substantially
all
assets by Eurocinema or assignment to an entity under common control with,
controlled by or in control of Eurocinema, unless such successor or transferor
is a material, direct competitor of TVN, in which case such prior written
consent shall be required.
| 13. |
NOTICES
|
Unless
otherwise stated herein, written notices shall be delivered by hand, postage
pre-paid mail or national overnight private mail delivery or by fax or email
(with contemporaneous delivery by one of the foregoing means) to the persons
and
at the addresses as set forth below and shall be deemed given upon transmission
in the case of fax or email or otherwise upon delivery. Either Party may
change
its address for receipt of notice to the other Party by delivering written
notice of such change pursuant to this Section.
|
If
to TVN:
|
If
to Eurocinema:
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇, Senior Vice President
TVN
Entertainment Corp.
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇@▇▇▇.▇▇▇
|
[Name]
[Address]
Fax:
[email
address]
|
|
With
a copy to:
|
With
a copy to:
|
|
General
Counsel
TVN
Entertainment Corp.
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
[CC:s]
|
|
Fax:
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
|
Fax:
[email]
|
11
With
respect to financial matters:
|
If
to TVN:
|
If
to Eurocinema:
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇
Controller
TVN
Entertainment Corp.
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇@▇▇▇.▇▇▇
|
[Name]
[Address]
Fax:
[email
address]
|
| 14. |
WAIVER
|
No
term
or condition of this Agreement shall be waived, and no breach shall be excused,
unless such waiver or excuse is in writing and signed by the Party against
whom
such waiver or excuse is claimed.
| 15. |
SEVERABILITY
|
The
invalidity under applicable law of any provision of this Agreement shall
not
affect the validity of any other provision of this Agreement, and in the
event
that any provision hereof would be determined to be invalid or otherwise
illegal, this Agreement shall remain effective and shall be construed in
accordance with its terms as if the invalid, illegal or unenforceable provision
were not contained herein.
| 16. |
FORCE
MAJEURE
|
Neither
Party shall be liable to the other hereunder for any delays, preemptions
or
other failure to perform when such delays, preemptions or failures are due
to
any cause beyond the control of the Party whose performance is so affected.
In
the event of any such delay, preemption or failure, the affected performing
Party shall promptly notify the other Party of the nature and anticipated
length
of continuance of such force majeure, and during such period both parties
shall
be excused, to the extent necessary, from performance hereunder.
| 17. |
CAPTIONS
AND HEADINGS
|
The
captions and headings are inserted in this Agreement for convenience only,
and
shall in no event be deemed to define, limit or describe the scope or intent
of
this Agreement, or of any provision hereof, nor in any way affect the
interpretation of this Agreement.
12
| 18. |
NO
INFERENCE AGAINST AUTHOR
|
TVN
and
Eurocinema each acknowledge and agree that this Agreement was fully negotiated
by the Parties and, therefore, no provision of this Agreement shall be
interpreted against any party because such party or its legal representative
drafted such provision.
| 19. |
ENTIRE
AGREEMENT
|
This
Agreement contains the entire understanding of the Parties relating to the
subject matter hereof and supersedes all prior agreements, whether oral or
written, regarding such subject matter. In addition, the Parties agree that
the
right of first refusal and last negotiation contained in the “Video On Demand
License Agreement” dated March 31, 2004 between TVN and Eurocinema shall be
terminated. This Agreement may only be modified in writing, executed by both
Parties.
This
Agreement is duly executed as of the date first written above when signed
by the
authorized representatives of Eurocinema and TVN, respectively.
|
Agreed
to and Accepted by:
|
Agreed
to and Accepted by:
|
|
|
EUROCINEMA
CORPORATION
|
TVN
ENTERTAINMENT CORPORATION
|
|
|
|
||
|
Title:
|
▇▇▇▇▇
▇. ▇▇▇▇▇
▇▇.
Vice President
|
|
13
SCHEDULE
A
Authorized
Systems
Schedule
A-1
SCHEDULE
B
Standard
Services
The
Standard Services provided as part of TVN Services shall include the
following:
| · |
Content
Preparation
|
| · |
Quality
Control - Uploading and Viewing
|
| · |
Asset
Package Configuration
|
| · |
Shared
Storage
|
| · |
60-day
centralized storage of content asset
|
| · |
Physical
Transport
|
| · |
Encapsulate
file
|
| · |
Uplink
and Space Segment
|
| · |
Multicast
delivery
|
| · |
Asset
Management
|
| · |
Metadata
ingestion, validation3,
and conversion
|
| · |
Metadata
rules management
|
| · |
Asset
monitoring, management, and control
|
| · |
Local
configuration, upload and delete
verification
|
3-
See Content Provider Requirements (CPR) document under separate cover. TVN
validates only that metadata conforms to Content Provider
Requirements.
NEW
SYSTEM LAUNCH
| · |
Upon
Eurocinema providing TVN with notice of a new System launch, the
TVN shall
deliver the VOD Titles to such System in accordance with the TVN’s
Transport Schedule, or as otherwise agreed to by the applicable Operator,
Eurocinema and TVN.
|
Schedule
B-1
SCHEDULE
C
Special
Delivery
In
the
event Eurocinema requests special delivery of a VOD Titles pursuant Section
3(e)
of this Agreement, TVN will make reasonable efforts to deliver the title
subject
to schedule availability and in a manner mutually agreed upon by the Parties.
For the purposes of this Schedule C, the TVN Standard Transport Rate is $4.25
per minute of run time, with a minimum payment of $85 per VOD
Title.
In
the
event TVN delivers the VOD Title by secure satellite transmission (“SST”),
Eurocinema will pay to TVN the following costs associated with such re-delivery
via SST:
(i) If
the
VOD Title is delivered within two (2) to seven (7) days following the date
Eurocinema provides notice to TVN, Eurocinema will pay TVN a 50% premium
above
TVN’s Standard Transport Rate; and
(ii) If
the
VOD Title is delivered in eight (8) or more days following the date Eurocinema
provides notice to TVN, Eurocinema will pay TVN a 25% premium above TVN’s
Standard Transport Rate.
In
the
event TVN delivers the VOD Title by hard drive, Eurocinema will pay TVN
Seventy-five Hundred Dollars ($7,500) per head-end plus $50 per hour of run
time
of VOD Titles on such hard drive per head-end.
Schedule
C-1
EXHIBIT
A
TVN
Content Provider Requirements
(As
of
the Effective Date)
Exhibit
A-1