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EXHIBIT 10.2
AFMA(R) INTERNATIONAL
FREE TV LICENSE AGREEMENT
This International Free TV License Agreement is made as of September
12, 1996 between DSL Entertainment Group, Inc.("Licensor") of 00000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx XX 00000 [tel/fax:] (000)000-0000/(310)442-
3501 and Eurolink - or order ("Licensee") of 0X Xxxxxxx Xxxxxx, Xxxxxx X0X 0XX
[tel/fax:]000 00 0000 000 0000/011 44 0171 629 6207.
This Agreement is: [X] A new agreement;
[ ] A long form that replaces the deal memo regarding
the Programs;
[ ] An amendment to an existing agreement dated ________
Subject to timely payment of all monies due Licensor and Licensee's
full performance under this Agreement, Licensor licenses to Licensee, and
Licensee accepts from Licensor, the Licensed Rights in the Programs throughout
the Territory for the Term in the Authorized Languages subject to the Hold backs
as identified below on all the terms and conditions of this Agreement.
This Agreement consists of the following parts: this Cover Page; Table
of Contents; Deal Terms; Standard Terms; Schedule of Definitions; and the
following Attachment(s): [ ] Schedule of Programs;[] Access Letter;
[ ] Guaranty; and _____________________________________________________
IN WITNESS WHEREOF, Licensor and Licensee have executed this Agreement
as of the date first written above to constitute a binding contract between
them.
LICENSOR LICENSEE
By:____________________________ By:____________________________
Its: Its:
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TABLE OF CONTENTS
Section Paragraph
DEAL TERMS
Program(s) A.
Territory B.
Authorized Language(s) C.
Term And License Period D.
Licensed Station E.
Free TV Rights F.
Exclusivity G.
Licensor's Hold backs H.
License Fee I.
Payment J.
Delivery Terms K.
Additional Terms L.
STANDARD TERMS AND CONDITIONS
Definitions And Usage 1.
Program And Versions 2.
Licensed Rights And Reserved Rights 3.
Allied Rights 4.
Territory, Holdback Region And Licensed Station 5.
Term And License Period 6.
Payment Requirements 7.
Delivery And Return 8.
Telecast Obligations 9.
Music 10.
Suspension And Withdrawal 11.
Default And Termination 12.
Anti-Piracy Provisions 13.
Licensor's Warranties 14.
Licensee's Warranties 15.
Indemnities 16.
Assignment And Sublicensing 17.
Miscellaneous Provisions 18.
SCHEDULE OF LICENSING DEFINITIONS
Free TV Rights Definitions A.
Additional Definitions B.
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AFMA(R) INTERNATIONAL
FREE TV LICENSE AGREEMENT
DEAL TERMS
Mention in these Deal Terms of any right not specifically licensed to
Licensee in the Licensed Xxxxxx Xxxx Terms does not grant to Licensee
expressly or by implication any right not specifically licensed to
Licensee in the Licensed Xxxxxx Xxxx Terms.
A. PROGRAM(S): 22 commercial 1/2 hours, "AMAZING TAILS"
[ ] As set forth on attached Schedule of Programs.
B. TERRITORY: United Kingdom, France, Italy, Spain, Portugal, Greece.
C. AUTHORIZED LANGUAGE(S): For each Program
[ ] Original Language; [X] Official Language(s) in Territory;
[X] as needed to service territories [ ] Dubbed Only [ ] Subtitled Only
[ ] Dubbed and Subtitled
D. TERM AND LICENSE PERIOD:
Subject to Paragraph 6.1. of the Standard Terms:
1. Term: The Term starts on September 1, 1996 and ends on:
a. The last Licensed Telecast of all Program(s), or
b. __________________________________________, or
c. Five (5) years from
[ ] the date of this Agreement
[ ] the first Licensed Telecast of any
Program.
[X] September 1, 1996
2. License Period: The period during which Licensee may
exploit the Licensed Right(s) in each Program starts on
the Availability Date for the Program and ends on the
earlier of the last Licensed Telecast for the Program or
end of the Term.
E. LICENSED STATION:
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In accordance with Paragraph 5.4. of the Standard Terms:
[ ] All broadcasters for the licensed Free TV Rights in the Territory;
or [X]Licensee
G. FREE TV RIGHTS: For each Program
LICENSED RUNS PLAY DATES AVAILABILITY DATE
Terrestrial [x]Yes [ ] No ___ [ ] To be advised (see Standard Terms P. 6.3.); or
[ ] as set forth on attached Schedule of Programs
Cable [x ] Yes [ ] No ___ [ ] To be advised (see Standard Terms P. 6.3.); or
[ ] as set forth on attached Schedule of Programs
Satellite [x ]Yes [ ] No ___ [ ] To be advised (see Standard Terms P. 6.3.); or
[ ] as set forth on attached Schedule of Programs
The Availability Date for each Program is subject to Availability
Coordination within the Region in accordance with Paragraph 6.4. of the
Standard Terms.
F. EXCLUSIVITY:
The Licensed Rights, as defined in Paragraph 3.1. of the Standard
Terms, are:
[X] Exclusive except _______________________________________
[ ] Non-Exclusive except ___________________________________
H. LICENSOR'S HOLD BACKS:
In accordance with Paragraph 6.5. of the Standard Terms, the Hold backs
on Licensor's exploitation of any Reserved Rights in each Program will
be:
[X] None.
[ ] As set forth on the Schedule of Programs.
[ ] All Free TV in the Authorized Languages per Paragraph 6.5.1. of the
Standard Terms.
[ ] All Pay TV in the Authorized Languages per Paragraph 6.5.2. of the
Standard Terms.
[ ] ______________________________________________________________.
I. LICENSE FEE: US$660,000.00 (Total for all Programs)
The License Fee is a minimum net sum and no taxes or charges may be
deducted from it.
1. ALLOCATED:
[ ] As set forth on the attached Schedule of Programs, or
[X] US$30,000.00 [ ] per Run\Play date or [X] per Program,
all territor(ies)
2. PAYABLE:
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a. % (US$ .00) on execution of this Agreement;
b. 100% (US$660,000.00) in ten (10) equal monthly
installments starting on March 1, 1997
c. % (US$ .00) on notice of delivery.
J. PAYMENT:
Licensee will pay the License Fee and any other payments due Licensor
as follows:
1. WT - WIRE TRANSFER [Check as appropriate]
[X] License Fee Installments: [X]I.2.a; [ ]I.2.b; [X]I.2.c;
[ ] Materials Charges (Section K.4)
Licensee will pay the indicated installments of the License Fee or
other payments by wire transfer of unencumbered funds, free of any
transmission charges, to the following account:
DSL Entertainment Group, Inc.
California United Bank
00000 Xxxxxxxx Xxxx. Xxxxx 000
Xxx Xxxxxxx XX 00000
Acct.# 000-000-000
ABA #000000000.
2. LC - LETTER OF CREDIT [Check as appropriate]
[ ] License Fee Installments: [ ]I.2.a; [ ]I.2.b; [ ]I.2.c;
[ ] Materials Charges (Section K.4)
Issued By: ______________ Open Until:___________Renewable For:_______.
Licensee will pay the indicated installments of the License Fee or other
payments by an irrevocable Letter of Credit which meets the requirements
of Paragraph 7.2. of the Standard Terms. The Letter of Credit will be
issued by and remain open until the dates indicated above. The Letter
of Credit will be payable on presentation to Licensor's corresponding
bank of:
[Check all that apply]
[ ] SIGHT DRAFT in usual commercial form indicating payment due.
[ ] INVOICE for payments then due.
[ ] XXXX OF LADING, such as an air waybill, evidencing shipment
to Licensee of the applicable Delivery Materials.
[ ] ACCESS LETTER substantially in the form attached for applicable
Delivery Materials.
3. OTHER:
[ ] License Fee Installments: [ ]I.2.a; [ ]I.2.b; [ ]I.2.c;
[ ] Materials Charges (Section K.4)
Licensee will pay the indicated installments of the License Fee or other
payments as follows:
K. DELIVERY TERMS:
1. PHYSICAL MATERIALS:
For each Program Licensor will make Delivery of the Physical
Materials:
[ ] As specified in Licensor's Delivery Notice per
Paragraph 8.1.; or
[X] By Delivering the following indicated items for the
original language version:
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Item Delivery Method (Para. 8.1., Standard Terms)
FEATURE LOW CONTRAST PRINT [ ]Physical [ ]Access [ ]Loan [ ]Satellite
[ ]35mm [ ]16mm
TRAILER LOW CONTRAST PRINT [ ]Physical [ ]Access [ ]Loan [ ]Satellite
[ ]35mm [ ]16mm
PRINT MASTER (2 TRACK) [ ]Physical [ ]Access [ ]Loan [ ]Satellite
[ ]35mm [ ]Stereo [ ]Mono
[ ]16mm [ ]Stereo [ ]Mono
NTSC (525) [ ]Physical [ ]Access [ ]Loan [ ]Satellite
[ ]1" [ ]D1 [ ]D2 [ ]D3
PAL (625) [ ]Physical [ ]Access [ ]Loan [ ]Satellite [ ]1" [ ]D1
[ ]D2 [ ]D3 [X] Betacam SP
2. SUPPORT MATERIALS:
For each Program Licensor will make Delivery of the Support
Materials:
[X] As available
[ ] As specified in Licensor's Delivery Notice per Paragraph
8.1.; or [ ] By Delivering the following items:
[ ] Feature Spotting List [ ] Press Book
[ ] Trailer Spotting List [ ] Electronic Press Kit
[ ] Feature Continuity [ ] Synopsis
[ ] Trailer Continuity [ ] Radio Spots (No.__)
[ ] Main & End Credits [ ] B&W Stills (No.__)
[ ] Paid Ad Credit [ ] Color Stills (No.__)
[ ] Dub/Sub Restrictions [ ] Color Slides (No.__)
[ ] Music Cue Sheets [ ] TV Spots (No.____)
[ ] As-Broadcast Scripts
3. DATE FOR DELIVERY NOTICE:
Licensor will give Licensee a Delivery Notice for each Program no
later than:
[X] Before its Availability Date; or
[ ] ____________________________________
4. MATERIALS PAYMENT INSTRUCTIONS:
Licensee will pay for all Materials:
[ ] As specified in Licensor's Delivery Notice per Paragraph 8.1.;
[X] As follows: Licensee will pay US$100.00 per episode for masters
5. MATERIALS SHIPPING INSTRUCTIONS:
Licensor will ship all Materials to Licensee:
[ ] As specified in Licensor's Delivery Notice per Paragraph 8.1.;
[X] As follows: Freight collect
L. ADDITIONAL TERMS:
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1. GOVERNING LAW:
[X] California or [ ] _____________________________________
2. FORUM:
[X] Los Angeles County or [ ] _____________________________
3. ADDITIONAL DEAL TERMS:
None.
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AFMA(R) INTERNATIONAL
FREE TV LICENSING AGREEMENT
STANDARD TERMS AND CONDITIONS
1. DEFINITIONS AND USAGE
1.1. DEFINITIONS: Capitalized words and phrases are Defined Terms. If
not defined where they first appear, Defined Terms are defined in the Schedule
of Definitions or by industry custom and practice. 1.2. USAGE: The use of any
Defined Term or provision relating to rights not specifically licensed in the
Deal Terms does not grant such right to Licensee expressly or by implication.
2. PROGRAM(S) AND VERSIONS
2.1. PROGRAMS: A Program is each, and the Programs are every, motion
picture and television production identified in the Deal Terms. A Program may be
a single work (e.g., one theatrical feature) or a set of related works (e.g.,
episodes of a television series) each of which is called an "Episode." All
Episodes in each Program are treated identically except where otherwise provided
in this Agreement.
2.2. VERSIONS: Each Program is only licensed in a linear form for
continuous viewing from beginning to end. Licensor reserves all rights in all
formats and Versions of each Program other than its original linear form as
Delivered to Licensee and authorized dubbed, subtitled or edited Versions.
3. LICENSED RIGHTS AND RESERVED RIGHTS
3.1. LICENSED RIGHTS: The Licensed Rights in each Program mean the
right to telecast the Program on the Licensed Station in the Authorized
Languages for reception within the Territory during its License Period by the
form of Free TV designated in the Deal Terms.
3.2. LICENSE AND EXCLUSIVITY: Subject to the terms of this Agreement,
Licensor licenses to Licensee the Licensed Rights in each Program, exclusively
or non-exclusively as designated in the Deal Terms. Exclusivity for any Program
only applies to telecasting by the form of Free TV licensed in the Deal Terms
which originates within the Territory in the Authorized Languages during the
License Period. 3.3. RESERVED RIGHTS: All rights not licensed to Licensee are
Reserved Rights. Licensor may exploit the Reserved Rights in each Program
without restriction unless provided otherwise in this Agreement.
4. ALLIED RIGHTS
4.1. ADVERTISING: In advertising each Program, Licensee will comply
with all screen credits (if not already contained in the Program), advertising,
publicity & promotional requirements, and name & likeness restrictions
("Licensor's Requirements") supplied by Licensor at all times after their
receipt.
4.2. DUBBING, SUBTITLING AND EDITING: In creating an authorized dubbed,
subtitled or edited version of each Program and its trailers, Licensee will
comply with Licensor's Requirements at all times after their receipt. Each
Program must be telecast in its original continuity without alteration or cut
except as otherwise provided in this Agreement.
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4.3. EXERCISE OF ALLIED RIGHTS: Subject to Paragraph 4.1. & 4.2.
and the provisions of this Agreement, Licensee will have the non-exclusive right
at its expense for each Program:
4.3.1. To advertise, publicize, and promote the Licensed
Rights in the Program;
4.3.2. To use the name, voice and likeness of Persons
rendering materials or services to the Program but not as an
endorsement for any product or service other than the Program; 4.3.3.
To include before or after the Program the credit or logo of Licensee;
4.3.4. To change the title of the Program with Licensor's approval;
4.3.5. To dub or subtitle the Program in the Authorized Language(s);
4.3.6. To include commercial announcements in the Program under
Paragraph 9.4.
4.4. INADVERTENT FAILURE: An inadvertent failure to comply with
Licensor's Requirements will not be a material breach if Licensee uses
reasonable efforts to cure prospectively such failure.
4.5. LIMITATIONS: In exercising the Allied Rights Licensee may not: (i)
alter or delete any credit, logo, copyright notice or trademark notice on any
Program; or, (ii) begin advertising the availability of the Licensed Rights in
any Program before its Availability Date.
5. TERRITORY, HOLDBACK REGION AND LICENSED STATION
5.1. TERRITORY: The Territory is the countries or territories listed in
the Deal Terms as their political borders exist on the date of this Agreement.
The Territory excludes: (i) foreign countries' embassies, military & government
installations, and oil rigs & marine installations located within the Territory;
and (ii) the countries' noncontiguous possessions, embassies, military &
government installations, and oil rigs & marine installations located outside
their contiguous borders.
5.2. CHANGES IN BORDERS: If an area separates from a country in the
Territory, then the Territory will still include each separating area that
formed one political entity as of the date of this Agreement. If an area is
annexed by a country in the Territory, then Licensee will promptly give Licensor
Notice whether Licensee desires to exploit any Licensed Right in the new area.
Licensor grants Licensee a First Negotiation right to acquire the Licensed Right
in the new area for the remainder of the License Period for each affected
Program subject to rights previously granted to others in the area.
5.3. HOLDBACK REGION: The Holdback Region is the part of the world in
which the Territory is located. The Region is defined either in the Deal Terms
or in the AFMA Standard Definitions of Territories and Regions current as of the
date of this Agreement.
5.4. LICENSED STATION: The Licensed Station is the terrestrial
broadcaster, cable system, satellite broadcaster or other transmitting service
designated in the Deal Terms. Where the Deal Terms indicate "all broadcasters,"
this means all stations for the specific Free TV Rights licensed. For example,
if only Free TV Terrestrial Rights are granted, then "all broadcasters" means
all terrestrial broadcasters in the Territory, but does not include cable
systems or satellite broadcasters.
5.5. CHANGES IN LICENSED STATION: Licensee may only telecast a Program
over the transmitting facilities of the Licensed Station existing on the date of
this Agreement. If there is a material change in the household television
receivers capable of receiving such telecast (e.g., modified signal amplitude or
frequency, new transmitting tower, increase in subscribers, new satellite or
transponder, altered orbital position, or new transmission channels), then
Licensee will promptly give Licensor Notice of such change. Licensor grants
Licensee a First Negotiation right to exploit the Licensed Rights for the
remainder of the License Period for each affected Program over the new
facilities, taking into account rights previously granted to others and an
adjustment in the License Fee.
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6. TERM AND LICENSE PERIOD
6.1. TERM: The Term starts and ends on the dates in the Deal Terms
except in case of suspension per Paragraph 11. or early termination per
Paragraphs 11. or 12.
6.2. LICENSE PERIOD : The License Period is the time period in the Deal
Terms during which Licensee may exploit the Licensed Rights in each Program. A
License Period will not be extended because Licensee did not make all Licensed
Telecasts.
6.3. AVAILABILITY DATE: The Availability Date is the date set forth in
the Deal Terms when Licensee may first exploit the applicable Licensed Right in
a Program. Where any Availability Date is "to be advised," Licensor will advise
Licensee of such date promptly after it becomes known.
6.4. AVAILABILITY COORDINATION: Licensor may shorten or extend by up to
three (3) months any Availability Date to coordinate the exploitation of the
Program within the Region. Licensor will give Licensee Notice of any adjusted
Availability Date no later than two (2) months before the earlier of the old
Availability Date or new Availability Date. Licensor will use reasonable good
faith efforts to coordinate release patterns in the Region so that exploitation
of a Licensed Right outside the Territory will not unduly impact on its
exploitation within the Territory, and vice versa.
6.5. LICENSOR'S HOLDBACKS: The Licensor Holdbacks are the periods of
time, if any, set forth in the Deal Terms during which Licensor will not exploit
any Reserved Rights in a Program as follows:
6.5.1. Where some but not all Free TV Rights are licensed in a
Program, and if so indicated in the Licensor's Holdback section of the
Deal Terms, then Licensor will not telecast or authorize telecast in
the Authorized Languages originating within the Territory of the
remaining Free TV Rights in such Program during its License Period. For
example, if only Free TV Terrestrial Rights are licensed, then, if
indicated in the Deal Terms, Licensor will not telecast or authorize
telecast in the Authorized Languages originating within the Territory
of the Free TV Cable or Free TV Satellite Rights in the Program during
its License Period.
6.5.2. If so indicated in the Licensor's Holdback section of
the Deal Terms, Licensor will not telecast or authorize telecast in the
Authorized Languages originating within the Territory of the Pay TV
Rights in each Program during its License Period. 6.6. BROADCAST
OVERSPILL: Licensor does not grant exclusivity or holdback protection
against reception in the Territory of a broadcast of the Program
originating outside the Territory. Licensor only agrees that during the
License Period for each Program Licensor will not broadcast or
authorize a broadcast of the Program in an Authorized Language that
originates in the Region outside the Territory and is intended for
primary reception within the Territory, except this limitation will not
apply to broadcasts of the original unsubtitled English language
version of the Program.
7. PAYMENT REQUIREMENTS
7.1. LICENSE FEE: The License Fee is full payment for Licensee's
exploitation of the Licensed Rights in the Programs. Timely payment of the
License Fee is of the essence of this Agreement. The License Fee is payable
whether or not all Licensed Telecasts occur. Licensee will pay each installment
of the License Fee as specified in the Deal Terms. If all Licensed Telecasts for
a Program are completed before all its installments are paid, Licensee will pay
the remaining balance of its License Fee within ten (10) days of its last
Licensed Telecast.
7.2. LETTER OF CREDIT: If the Deal Terms indicate that a payment is to
be secured by a Letter of Credit, then Licensee will open the Letter of Credit
at a bank in the Territory designated by Licensor as a corresponding bank of
Licensor's bank. The Letter of Credit will be in the form of the Standard AFMA
Letter of Credit Form or
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other mutually approved form acceptable to Licensor's bank. While open, the
Letter of Credit will remain valid, negotiable, transferable, confirmed and
irrevocable; and it will be automatically renewable for any period specified in
the Deal Terms if Licensor has not fully negotiated it by its first expiry date.
All costs for a Letter of Credit will be borne solely by Licensee.
7.3. LIMITATION ON DEDUCTIONS: Licensee will not deduct from any
payment any bank charges, conversion costs, sales use or VAT taxes, remittance
or withholding taxes, "contingents", quotas or any other taxes, levies or
charges unless separately agreed in writing by Licensor.
7.4. BLOCKED FUNDS: If a Law prohibits remittance of monies to Licensor
then Licensee will immediately so notify Licensor and deposit such monies in
Licensor's name in a suitable depository designated by Licensor.
7.5. FINANCE CHARGE ON LATE PAYMENTS: A late payment will incur a
finance charge from the due date until payment in full at the lesser of three
hundred basis points over the 3-month LIBOR rate ("LIBOR+3") on the due date or
the highest legal contract rate.
7.6. EXCHANGE PROVISIONS, PAYMENT: All payments will be in United
States dollars or other freely remittable currency designated by Licensor. All
payments will be computed at the exchange rate prevailing on the date due at a
commercially reasonable bank designated by Licensor. For a late payment Licensor
will be entitled to the best exchange rate between the due date and the payment
date.
7.7. LIMITS ON SET-OFF: The License Fee will be separate and apart from
any other obligation between Licensor and Licensee, and Licensee will not
cross-collateralize, set-off, diminish or delay payment of the License Fee due
to any such obligations.
7.8. ROYALTY INCOME: Monies and royalties collected by a collecting
society, authors' rights organization, performing rights society or governmental
agency from compulsory licenses, cable retransmission income, Secondary
Broadcasts, music performance royalties, tax rebates, levies on blank Videograms
or hardware, rental or lending royalties, or the like, will be the property of
Licensor, who retains the sole right to apply for and collect these amounts.
8. DELIVERY AND RETURN
8.1. DELIVERY: Delivery of a Program means delivery to Licensee of the
Delivery Materials as provided in the Deal Terms and this Paragraph 8. The
Delivery Materials will be those specified in the Deal Terms or those available
based on the age and gauge of the applicable Program. The Delivery Materials
consist of the Physical Materials or Support Materials as the context requires.
8.2. DELIVERY NOTICE: Licensor will give Licensee a Delivery Notice
specifying when it will Deliver the Delivery Materials for each Program.
Licensee will immediately pay for the Delivery Materials and their cost of
shipment. Payment and shipment will be as specified in the Deal Terms or
Licensor's Delivery Notice. Licensee must accept all Delivery Materials within
two (2) months of Licensor's Delivery Notice.
8.3. PHYSICAL MATERIALS: Licensor will Deliver the Physical Materials
for each Program by the following methods as specified in the Deal Terms or
Licensor's Delivery Notice:
8.3.1. Physical Delivery to the Delivery Location specified in
the Deal Terms or the Delivery Notice.
8.3.2. Laboratory Access using the standard AFMA Access Letter
or other mutually approved access letter to the laboratory designated
by Licensor.
8.3.3. Loan Of Materials for a reasonable time to the Delivery
Location specified in the Deal Terms or the Delivery Notice for
manufacture of necessary exploitation materials at Licensee's expense.
8.3.4. Satellite Transmission commensurate with available
materials and equipment. Licensor
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will pay the initial uplink transmission costs; Licensee will pay the
downlink reception costs. Licensee's failure to receive a transmission
will not affect Licensee's obligations, although Licensor will attempt
to assist Licensee to receive a new transmission. Licensee will pay for
each missed satellite feed at Licensor's actual cost of transmission.
8.4. SUPPORT MATERIAL: Licensor will Deliver the Support Materials as
indicated in the Deal Terms or Licensor's Delivery Notice. Licensee must obtain
Licensor's approval before using its own support material.
8.5. EVALUATION AND ACCEPTANCE: The Delivery Materials for each Program
will be suitable for use as or in the manufacture of necessary exploitation
materials based on the age and gauge of the Program. The Delivery Materials will
be considered technically acceptable unless within ten (10) days of receipt
Licensee gives Notice specifying the technical defect. If Licensee's Notice is
accurate, Licensor will at its election either: (i) timely Deliver corrected or
replacement Delivery Materials; or (ii) exercise its right of suspension or
withdrawal under Paragraph 11.
8.6. OWNERSHIP: Legal ownership of all Delivery Materials will remain
with Licensor subject to Licensee's rights under this Agreement. Licensee will
exercise due care in safe-guarding all Delivery Materials while they are in
Licensee's possession.
8.7. LICENSEE CREATED MATERIALS: Licensor is at any time entitled to
acquire from Licensee, against payment, all alternate language tracks and dubbed
versions, masters, advertising and promotional materials, artwork and other
materials created by Licensee pursuant to this Agreement. Upon request after
their creation, Licensee will give Licensor Notice where these materials are
located and, upon payment, provide access to them. Licensor will immediately
become the copyright owner of all such materials, including all dubbed and
subtitled tracks, or, if such ownership is not allowed under a Law in the
Territory, then Licensee will grant Licensor, upon payment to be negotiated in
good faith in each case, a non-exclusive license to use them worldwide in
perpetuity. In all cases Licensee may only use such materials during the License
Period to exploit the Licensed Rights.
8.8. RETURN: Upon expiry of the License Period for each Program
Licensee will at Licensor's election either: (i) return its Delivery Materials
to Licensor at Licensee's expense; or (ii) destroy its Delivery Materials and
provide Licensor with a customary certificate of destruction.
9. TELECAST OBLIGATIONS
9.1. GENERAL: Each Program may only be telecast: (i) in the Authorized
Language(s); (ii) for no more than the Licensed Telecast(s); (iii) to nonpaying
audiences; (iv) over the existing telecasting facilities of the Licensed
Station; and (v) for reception on home television receivers in the Territory.
Licensee may not make a telecast intended for primary reception outside the
Territory or capable of reception by a more than insubstantial number of home
television receivers outside the Territory.
9.2. LICENSED TELECAST(S): For each Program the Licensed Telecast(s)
are the total of all Runs or Playdates licensed to Licensee in the Deal Terms.
9.3. USAGE REPORTS: On reasonable request and if reasonably available,
Licensee will promptly provide the title of each Program in each Authorized
Language, the identity of each person who prepared a dubbed or subtitled
version, and the date of each Licensed Telecast.
9.4. COMMERCIALS: Licensee may insert a customary number of commercial
announcements in each Program during each Licensed Telecast in the places
designated by Licensor, or, if none are designated, in places that do not
unreasonably interrupt the continuity of the Program.
9.5. SECONDARY BROADCASTS: Licensor reserves the right to authorize and
collect royalties for any Secondary Broadcast of each Program whether the
primary broadcast originates inside or outside the Territory.
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Licensor does not grant any exclusivity protection against Secondary Broadcasts
regardless of where the primary broadcast originated. If Licensees may grant or
withhold authorization for Secondary Broadcasts of their broadcasts, then
Licensee will abide by Licensor's reasonable requirements in this regard,
including restricting any Secondary Broadcast of any Program.
10. MUSIC
10.1. CUE SHEETS: To the extent required and available, Licensor will
timely supply Licensee with available music cue sheets for each Program.
10.2. SYNCHRONIZATION AND MECHANICAL: Licensor warrants that Licensor
controls all rights necessary to synchronize the music on each Program and to
make mechanical reproductions of the music in each Program. Licensor holds
Licensee harmless from any payments in this regard.
10.3. PERFORMANCE: Licensor warrants that the non-dramatic ("small")
performing rights in the music in each Program are either: (i) in the public
domain in the Territory; or (ii) controlled by Licensor sufficient to allow
Licensee to exploit them without additional payment; or (iii) available by
license from a music performing rights society in the Territory, in which case
Licensee will be responsible for obtaining a license at its own expense.
11. SUSPENSION AND WITHDRAWAL
11.1. LICENSOR'S RIGHT: Licensor may withdraw any Program or suspend
its License Period: (i) if Licensor determines in good faith that its
exploitation might infringe the rights of others or violate any Law; (ii) if
Licensor determines in good faith that its Delivery Materials are unsuitable for
exploitation; (iii) due to Force Majeure; or (iv) after an unsuccessful First
Negotiation under Paragraph 5.5.
11.2. EFFECT OF SUSPENSION: Licensee may not claim damages or lost
profits for a suspension. Instead, the License Period of the affected Program
will be extended during the suspension. If a suspension lasts more than three
(3) consecutive months, then either Party may terminate this Agreement for the
affected Program on ten (10) days' Notice and the Program will be treated as
withdrawn.
11.3. EFFECT OF WITHDRAWAL: If the Program is withdrawn Licensor must
either: (i) promptly substitute a Program of like quality mutually satisfactory
to Licensor and Licensee; or (ii) refund an equitable portion of the License Fee
attributable to any unused Licensed Telecast. Licensee's sole remedy will be to
receive this substitute or refund. Licensee may not collect any lost profits or
consequential damages for any withdrawn Program.
11.4. FORCE MAJEURE: Force Majeure means any fire, flood, earthquake,
or public disaster; strike, labor dispute or unrest; unavailability of any major
talent on the Program; unavoidable accident; breakdown of equipment;
non-performance or delay by any laboratory or supplier; lack of transportation;
embargo, riot, war, insurrection or civil unrest; any Act of God including
inclement weather; any act of legally constituted authority; or any other cause
beyond the reasonable control of Licensor.
12. DEFAULT AND TERMINATION
12.1. LICENSEE'S DEFAULT: Licensee will default if: (i) Licensee fails
to pay or to give reasonable assurances it will pay any installment of the
License Fee when due; (ii) Licensee becomes insolvent or fails to pay its debts
when due; (iii) Licensee seeks relief under any bankruptcy law or similar law
for protection of debtors, or allows a receiver or trustee to be appointed for
substantially all of its assets who is not removed within thirty (30) days; (iv)
Licensee breaches any material provision of this Agreement or any other
agreement with Licensor; or (v) Licensee attempts to make an assignment without
first obtaining Licensor's reasonable approval under Paragraph 17.1.
12.2. NOTICE TO LICENSEE: Licensor will give Licensee Notice of any
default. Licensee will then have ten
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(10) days to cure a monetary default and twenty (20) days to cure a non-monetary
default. If Licensee fails to do so, then Licensor may proceed against Licensee
for available relief, including suspending Delivery of any undelivered Programs,
terminating this Agreement for any Programs, or declaring all unpaid amounts
immediately payable for any Programs, but Licensor may not collect any lost
profits or consequential damages.
12.3. LICENSOR'S DEFAULT: Licensor will default if: (i) Licensor fails
to Deliver any Program in a timely manner after a reasonable request from
Licensee; (ii) Licensor makes an assignment for the benefit of creditors, or
seeks relief under any bankruptcy law or similar law for protection of debtors,
or allows a receiver or trustee appointed for substantially all of its assets
who is not removed within thirty (30) days; or (iii) Licensor breaches any
material provision of this Agreement. A default by Licensor is limited to the
affected Program, and Licensee may not terminate this Agreement unless Licensor
is in default for more than half of the Programs. No default by Licensor as to
any one agreement with Licensee will be a default as to any other agreement with
Licensee.
12.4. NOTICE TO LICENSOR: Licensee will give Licensor Notice of any
default. Licensor will then have ten (10) days to cure a monetary default and
twenty (20) days to cure a non-monetary default. If Licensor fails to do so,
then Licensee may proceed against Licensor for available relief, but Licensee
may not collect any lost profits or consequential damages.
12.5. ARBITRATION: All disputes under this Agreement will be resolved
by final and binding arbitration under the Rules for International Arbitration
of the American Film Marketing Association in effect when the arbitration is
filed (the "AFMA Rules"). Each Party waives any right to adjudicate any dispute
in any other court or forum except a Party may seek interim relief as allowed by
the AFMA Rules. The arbitration will be held in the Forum, or, if none is
designated, as determined by the AFMA Rules. The Parties will abide by any
decision in the arbitration and any court having jurisdiction may enforce it.
The Parties submit to the jurisdiction of the courts in the Forum to compel
arbitration or to confirm an arbitration award. The Parties agree to accept
service of process in accordance with the AFMA Rules.
13. ANTI-PIRACY PROVISIONS
13.1. NOTICE REQUIREMENTS: Licensee will include in each telecast of
each Program the copyright notice and reasonable anti-piracy warning supplied by
Licensor.
13.2. ENFORCEMENT: Licensee will take reasonable steps to protect the
copyright in each Program. Licensor may engage in any anti-piracy action using
its own counsel. Licensor's expenses will be reimbursed from any recovery
equally with Licensee's. If any Law allows Licensee to telecast a Program by
satellite throughout the Region regardless of the borders of countries in the
Territory, then Licensee will co-operate in any action to protect a Program
within the Region.
13.3. NEW TECHNOLOGY: If during the Term new technology in general
commercial use provides protection against piracy, then Licensee will use such
technology in a reasonable manner.
13.4. NO WARRANTY AGAINST PIRACY: Licensor makes no warranty against
the piracy of any program. No piracy of any Program will allow Licensee to
terminate this Agreement or reduce any amounts due Licensor.
14. LICENSOR'S WARRANTIES
14.1. LICENSOR AS PRINCIPAL: If Licensor is a principal, Licensor
warrants:
14.1.1. Licensor has full authority to execute and perform
this Agreement;
14.1.2. There are no existing or threatened claims or
litigation which would impair Licensee's exploitation of any Licensed
Right in any Program during its License Period;
14.1.3. For any exclusive Licensed Right, Licensor has not
licensed or encumbered the Licensed
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Right to another Person in the Territory during its License Period;
14.1.4. Each Program was produced by authors who are nationals
of or have their habitual residence in, or was first published or
simultaneously first published in, a country which at the time of such
production or publication was a signatory to the Berne Convention for
the Protection of Literary and Artistic Works or the Universal
Copyright Convention or the Buenos Aires Convention, and Licensor has
not done or omitted to do any act which would impair the copyright in
any Program within the Territory during its License Period; and
14.1.5. Licensee's exercise of any Licensed Right in a Program
will not: (i) defame, or hold in a false light, or infringe any privacy
or publicity or other personal right of any Person; or (ii) infringe
any copyright, trademark, right of ideas, or any other property right
of any Person.
14.2. LICENSOR AS AGENT: If Licensor is a sales agent, Licensor
warrants:
14.2.1. Licensor has full authority from its principal to
enter into this Agreement and Licensor's principal will be bound by
this Agreement;
14.2.2. To the best of Licensor's knowledge there are no
existing or threatened claims or litigation which would impair
Licensee's exploitation of any Licensed Right in any Program during its
License Period;
14.2.3. To the best of Licensor's knowledge there are no other
agreements licensing or encumbering any Licensed Right to another
Person in the Territory during its License Period; and
14.2.4. Licensor's principal has authorized Licensor to make
the warranties in Paragraph 14.1. to Licensee on the principal's
behalf.
15. LICENSEE'S WARRANTIES
15.1. LICENSEE AS PRINCIPAL: Licensee warrants:
15.1.1. Licensee has full authority to execute and perform
this Agreement;
15.1.2. There are no existing or threatened claims or
litigation which would impair Licensee's ability to perform under this
Agreement; and
15.1.3. Licensee will honor all restrictions on the exercise
of the Licensed Rights and the Allied Rights in each Program and will
not exploit any Licensed Right outside the Territory, before its
Availability Date or after its License Period.
15.2. LICENSEE AS ASSIGNOR: For an assignment under Paragraph 17.1.
Licensee also warrants:
15.2.1. The assignee will make all warranties in Paragraph 15.
directly to Licensor; and
15.2.2. If the assignee breaches any of those warranties,
Licensor may proceed against Licensee for such breach without first
exhausting any right or remedy against the assignee.
16. INDEMNITIES
16.1. BY LICENSOR: Licensor will indemnify and hold harmless Licensee,
including its officers, directors, partners, shareholders, employees, attorneys
and agents, from all claims, loss, liability, damages, judgments or expenses,
including reasonable attorneys' fees, but not including lost profits, due to
breach of Licensor's warranties. If Licensor is acting as an agent, these
indemnities are also made directly by Licensor's principal to Licensee, but
Licensee will look only to Licensor's principal to honor these indemnities with
regard to the principal's warranties.
16.2. BY LICENSEE: Licensee will indemnify and hold harmless Licensor,
including its officers, directors, partners, shareholders, employees, attorneys
and agents, from all claims, loss, liability, damages, judgments or expenses,
including reasonable attorneys' fees, but not including lost profits, due to
breach of Licensee's warranties.
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17. ASSIGNMENT AND SUBLICENSING
17.1. LICENSEE'S LIMITATIONS: Licensee may not assign or transfer this
Agreement, voluntarily or involuntarily, without Licensor's prior approval not
to be unreasonably withheld or delayed. A transfer of a controlling interest in
Licensee's stock or other evidence of ownership will be a transfer requiring
Licensor's approval. If Licensor does approve, this Agreement will be binding on
the authorized assignee or transferee, but will not release Licensee from its
obligations.
17.2. LICENSOR'S RIGHTS: Before Delivery of all Programs, Licensor may
not assign this Agreement without Licensee's prior approval not to be
unreasonably withheld or delayed except as provided in Paragraph 17.3. After
Delivery of all Programs, Licensor may freely assign this Agreement or any
rights under it, but no such assignment will relieve Licensor of its obligations
unless it is to a company which acquires all or substantially all of Licensor's
assets.
17.3. LICENSOR'S ASSIGNMENT FOR FINANCING: If Licensor pledges this
Agreement or assigns any payment to a lender, completion guarantor or other
Person, then Licensee will promptly on request execute a reasonable and
customary acknowledgment and consent to such assignment. Licensee will abide by
consistent written instructions from Licensor and such Person in making any
payments, and will not set off such payments against any other amounts or
claims.
18. MISCELLANEOUS PROVISIONS
18.1. SEPARABILITY: If this Agreement conflicts with any material Law
the Law will prevail.
18.2. NO WAIVER: No waiver of any breach will waive any other breach.
No waiver is effective unless in writing. The exercise of any right will not
waive any other right.
18.3. REMEDIES CUMULATIVE: All remedies are cumulative, and resort to
one will not preclude resort to any other at any time.
18.4. NOTICES: All Notices must be in writing and sent to a Party at
its address on the Cover Page by fax, telex, telegram or first class mail.
Notice will be effective when received. Either Party may change its place for
Notice by Notice duly given.
18.5. ENTIRE AGREEMENT: This Agreement contains the entire
understanding of the Parties regarding its subject matter. It supersedes all
previous written or oral negotiations, deal memos, understandings or
representations between the parties regarding its subject matter, if any.
18.6. MODIFICATION: A modification or amendment of this Agreement must
be in writing signed by both Parties.
18.7. TERMINOLOGY: "And" means all of the possibilities, "or" means any
or all of the possibilities in any combination, and "either...or" means only one
of the possibilities. "Including" means "including without limitation." "Must"
or "will" means a Party has the obligation to act or refrain from acting; "may"
means a Party has the right but not the obligation to act or refrain from
acting.
18.8. GOVERNING LAW: This Agreement will be governed by and interpreted
under the laws of the state or jurisdiction specified as Governing Law in the
Deal Terms.
18.9. FORUM: The Parties consent to the Forum in the Deal Terms as the
place to resolve disputes.
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AFMA(R) INTERNATIONAL
SCHEDULE OF LICENSING DEFINITIONS
A. FREE TV RIGHTS DEFINITIONS:
FREE TV means Terrestrial Free TV, Cable Free TV, and Satellite Free TV
exploitation of a Motion Picture. Free TV does not include any form of
PayPerView.
TERRESTRIAL FREE TV means over-the-air broadcast by Hertzian waves of a
Motion Picture Copy for reception on television receivers in private living
places without a charge to the viewer for the privilege of viewing the Motion
Picture, provided that for this purpose government television receiver
assessments or taxes (but not a charge for PayPerView or Pay TV) will not be
deemed a charge to the viewer.
CABLE FREE TV means the originating transmission by coaxial or
fiber-optic cable of a Motion Picture Copy for reception on television receivers
in private living places without a charge to the viewer for the privilege of
viewing the Motion Picture, provided that for this purpose neither government
television receiver assessments or taxes nor the regular periodic service
charges (but not a charge for PayPerView or Pay TV) paid by a subscriber to a
cable television system will be deemed a charge to the viewer.
SATELLITE FREE TV means the up-link broadcast to a satellite and its
down-link broadcast to terrestrial satellite reception dishes of a Motion
Picture Copy for viewing on television receivers in private living places
located in the immediate vicinity of their reception dishes without a charge to
the viewer for the privilege of viewing the Motion Picture, provided that for
this purpose government satellite dish or television receiver assessments or
taxes (but not a charge for PayPerView or Pay TV) will not be deemed a charge to
the viewer.
B. ADDITIONAL DEFINITIONS:
AFFILIATE means any Person, including any officer, director, employee
or partner of a Person controlled by, controlling or under common control with a
Party.
AVAILABILITY DATE means the first day after the end of the Holdback
Period for a Licensed Right. If the Availability Date refers to a category of
Licensed Rights, it refers to the first date on which Licensee may exploit any
Licensed Right in the category.
BROADCAST means the communication to the public of a Motion Picture by
means of wire, cable, wireless diffusion or radio waves that allows the Motion
Picture to be viewed on a television receiver. Broadcast means the same as
telecast or diffusion.
FIRST NEGOTIATION means that, provided that Licensee is then actively
engaged in the distribution business on a financially secure basis, Licensor
will negotiate with Licensee in good faith for a period of ten (10) days
regarding the matter for which Licensee has a First Negotiation right before
entering into negotiations regarding the matter with any other Person. If no
agreement is reached within this time period, then Licensor will be free to stop
negotiations with Licensee, withdraw the Picture and then to negotiate and
conclude an agreement regarding the proposed matter with any other Person on any
terms.
LAW means any statute or ordinance, whether municipal, state, national
or territorial, any executive, administrative or judicial regulation, order,
judgment or decree, any treaty or international convention, or any rule, custom
or practice with force of law.
MOTION PICTURE means an audiovisual work consisting of a series of
related images that, when shown in succession, impart an impression of motion,
with accompanying sounds, if any.
MOTION PICTURE COPY means the embodiment of a Motion Picture in any
physical form, including film, tape, cassette or disc. Where a specific medium
is limited to exploitation by a specific physical form, for example, to
Videograms, then Motion Picture Copy with respect to such medium is limited to
such physical form.
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PLAY DATE means one or more telecasts of the Picture during a
twenty-four (24) hour period over the non-overlapping telecast facilities of
the Licensed Station.
PARTY means either Licensor or Licensee.
PAY TV means transmission of a Motion Picture Copy by means of an
encoded signal for reception on television receivers where a charge is made: (i)
to viewers in private living places for use of a decoding device to view a
channel that broadcasts the Motion Picture along with other Picturing; or (ii)
to the operator of a hotel or similar temporary living place located distant
from where the broadcast signal originated for use of a decoding device to
receive a channel that broadcasts the Motion Picture and other Picturing and
retransmit it throughout the temporary living place for viewing in private
rooms.
PERSON means any natural person or legal entity.
RUN means one (1) telecast of a Picture during a twenty-four (24) hour
period over the non-overlapping telecast facilities of the Licensed Station. A
simultaneous telecast over interconnected local stations (i.e., on a network) is
one (1) telecast; a telecast over non-interconnected local stations whose
reception areas do not overlap is a telecast in each station's local broadcast
area.
SECONDARY BROADCAST means the simultaneous, unaltered and unabridged
retransmission by a cable, microwave or telephone system for reception by the
public of an initial transmission, by wire, or over the air, including by
satellite, of a Motion Picture intended for reception by the public.
TELECAST means any broadcast of a Motion Picture but only in accordance
with the specific Licensed Rights for such Motion Picture.
THEATRICAL RELEASE means the date on which the Picture is first
exhibited in theaters, including mini-theaters and MTV theaters, within the
Territory to the paying public, including screenings to qualify for awards
presentations by authority of Licensor.
VIDEO RELEASE means the date on which Videograms embodying the Picture
are first sold or rented to the paying public in the Territory by authority of
Licensor.
VERSION means an adaptation of a Motion Picture that is not
accomplished by merely mechanical reproduction or use of minimal originality but
instead uses original artistic or intellectual expression to create a new Work
in its own right which contains materials or expressions of authorship not found
in the original Motion Picture.
WORK means an original expression of authorship in the literary,
scientific or artistic domain whatever may be the mode or form of its
expression.
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