LICENSE AGREEMENT
THIS AGREEMENT, dated as of February 6, 2007, is
between NUTECH DIGITAL, INC. (“Licensor”), and iN
DEMAND L.L.C. (“Licensee”).
The Deal Terms
set forth below, the Standard Terms and Conditions attached hereto
as Exhibit A, and the Delivery Information attached hereto as
Exhibits B, C and D, are referred to collectively herein as the
“Agreement”. All references to the Agreement shall be
deemed to include all of the foregoing. Except as expressly set
forth in these Deal Terms, in the event of a conflict between any
provision of the Deal Terms and any provision of the Standard Terms
and Conditions, the terms of the Deal Terms shall govern to the
extent of any such conflict.
In
consideration of the mutual promises herein contained and for other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as
follows:
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Program : “Program” shall mean the programs
set forth below. Each Program shall be of first class production
quality and shall be designed to reach the widest possible
audience.
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Program
1
“Jessica Simpson:
Reality Tour Live”
Program
2
“Fat Joe: Live at the
House of Blues”
Program
3
“D12: Live in
Chicago”
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Running
Time : With respect to
Program 1, 88 minutes; Program 2, 58 minutes; and Program 3, 118
minutes.
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Ratings and
Content Advisories : With
respect to Program 1, TV-G and with respect to Programs 2 and 3,
TV-14, L.
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SD
Rights : With respect to
each Program, exclusive rights to authorize the Exhibition of the
standard definition “SD” version of such Program
through Affiliated Systems during the License Period within the
Territory on (i) a Pay-Per-View Basis and (ii) as part of an SVOD
Package. With respect to each Program, Licensor may authorize a
third party that is not an Affiliated System to Exhibit the
version(s) of such Program made available to Licensee hereunder by
means of Non-Standard Television (other than the Internet) on a
Pay-Per-View Basis during such Program’s License
Period.
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HD
Rights : With respect to
each Program, the non-exclusive rights and license under copyright
to Exhibit the HD version of such Program as part of
Licensee’s HD offering by any means or media, including,
without limitation, on the HD Service, without limitation as to the
number of Exhibitions thereof.
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License
Period : With respect to
each Program, 2 years commencing with its initial Exhibition
hereunder.
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Number of
Exhibitions :
Unlimited.
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Territory : The United States of America and its
commonwealths, territories and possessions (including, without
limitation, the U.S. Virgin Islands, Puerto Rico, Guam and Saipan),
Canada, the Bahamas, Bermuda, Jamaica, the Cayman Islands, Curacao,
the Netherlands Antilles (including, without limitation, St.
Maarten), the Dominican Republic, Anguilla and the West Indies;
provided that the Territory with respect to Exhibition via any
means or media other than traditional cable television shall be the
world in its entirety.
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Exhibition
Holdback Date : With
respect to each version of the Program, the end of the License
Period therefor.
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Promotion
Holdback Date : With
respect to each version of the Program, the end of the License
Period therefor.
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Delivery
Date : With respect to
Program 1, 3/15/07; Program 2, 4/15/07; and Program 3,
5/15/07.
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Delivery : With respect to each Program, not later than
the Delivery Date therefor, Licensor shall deliver to Licensee a
taped, closed-captioned, post-produced version of (i) the SD
version of such Program as provided in the Standard Terms and
Conditions and Exhibits B hereto and (ii) the HD version of such
Program as provided in the Standard Terms and Conditions and
Exhibit C hereto.
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SD Suggested
Retail Price (“SRP”) : With respect to Programs 1 and 3, $9.95; and
with respect to Program 2, $6.95.
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SD License
Fee Payable to Licensor :
With respect to each Program, subject to the Standard Terms and
Conditions, the License Fee for such Program shall payable as
follows:
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(a)
With respect to each Program
Exhibited on a Pay-Per-View Basis, the License Fee for such Program
shall equal the greater of 25% of (i) Gross Receipts for such
Program and (ii) the SRP for such Program.
(b)
With respect to each Program
Exhibited as part of the SVOD Package, subject to the Standard
Terms and Conditions, the monthly License Fee for each
“flight” (i.e., each time a Program is scheduled as
part of the SVOD Package, which scheduling Licensee anticipates
will be approximately five weeks) of such Program shall equal the
product of (i) $.05 cents x (ii) the number of hours, rounded to
the nearest quarter hour, of each Program Exhibited during such
Program’s first month of Exhibition of each
“flight” x (iii) the number of Subscribers to such SVOD
Package during such first month of Exhibition. The number of
Subscribers each month shall be calculated by adding the number of
Subscribers on the first and last days of a month and dividing by
two (2).
Notwithstanding
the foregoing, with respect to each Program, no License Fee shall
be payable to Licensor until (A) the execution and delivery of this
Agreement, and (B) delivery by Licensor of a certified copy of the
endorsement of insurance (satisfactory in form and substance
to Licensee) covering the perils as set forth in these Deal
Terms.
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SD Payment
Terms : With respect to
each Program, subject to the Standard Terms and Conditions, the
date five (5) business days after the end of each Accounting Period
therefor. “Accounting Period” shall mean, with respect
to each Program,: (a) a period commencing on the date on which such
Program is first Exhibited on a Pay-Per-View Basis hereunder and
ending on the date sixty (60) days thereafter (or, if such date is
not the last day of a calendar month, the last day of the calendar
month in which such date occurs); and (b) each calendar month
thereafter for so long as there are monies due and owing Licensor
hereunder.
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HD License
Fee : The parties
acknowledge that the HD rights and licenses herein granted have
been granted for good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), and that no further
amount shall be payable by Licensee for such rights and licenses or
their exercise.
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Sponsorship : Licensor will inform personnel that they
cannot wear production T-shirts and jackets during any Program that
bear the name or logo of other media (including Internet) entities,
such as HDNET, HBO, FOX, ABC, SET and ESPN. No sponsorship
(including billboards and signage) is permitted in conjunction with
any Program without Licensee’s prior written approval
(exercisable in Licensee’s sole discretion). Licensee shall
have the right to associate a sponsor with the Exhibition of each
Program.
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Merchandise : No merchandising is permitted in conjunction
with any Program without Licensee’s prior written approval
(exercisable in Licensee’s sole discretion).
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Vignettes : Licensee shall have the right to create
vignettes using HD footage from each Program, for Exhibition by any
HD means or media (the “Vignettes”). The Vignettes may
be presented as “INHD Flashback Moments” (or similar
identifier). Further, Licensee shall have
the right to Exhibit as Vignettes each song (in whole or in part)
contained in each Program on an HD, standard definition, linear
and/or VOD Basis (each, a “Vignette”). The
Vignettes may be presented as part of such Program, the “INHD
Concert Jukebox” (or such other name as Licensee, in its sole
discretion, may elect) and any other programming exhibited, or
authorized to be exhibited, by Licensee. There shall be no
additional License Fee for the Vignettes.
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Late Fees
and Other Costs . In the
event Licensor makes any changes in any Program or its promotion
(including cancellation), Licensor is responsible for all costs
associated with these delays and/or changes including but not
limited to editing, audio, communications ( e.g. ,
telecopies) and delivery of material, and shall pay to Licensee an
amount equal to such costs not later than fifteen (15) days after
Licensee’s delivery of documentation evidencing such costs.
Notwithstanding anything herein to the contrary and without in any
way limiting Licensee’s rights and remedies hereunder or
otherwise including, without limitation, an action at law to
recover damages if any Program is cancelled by or on behalf of
Licensor or any performer for any reason, within thirty (30) days
of such cancellation, Licensor will remit to Licensee the sum of
$25,000, together with an amount equal to all amounts paid by
Licensee for the marketing and promotion of such Program (such
aggregate amount being herein referred to as the
“Cancellation Fee”).
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Insurance
Requirements : With
respect to each Program, Licensor shall procure and maintain in
full force and effect standard producer’s liability (errors
and omissions) insurance covering such Program throughout the
Territory with minimum limits applicable only to such Program of at
least One Million Dollars ($1,000,000) for any claim arising out of
a single occurrence and Three Million Dollars ($3,000,000) for all
claims in the aggregate, which insurance shall include title
coverage for such Program and shall be written on either: (A) an
occurrence basis, in which event it shall remain in full force and
effect until the end of the License Period for such Program and may
not be permitted to lapse, or (B) a claims-made basis, in which
event it shall remain in full force and effect until the end of the
License Period for such Program, shall cover any claims made at any
time until the end of such License Period and shall include an
extended reporting period of no less than one year after the
expiration of such License Period and may not be permitted to
lapse; and (b) such other insurance coverage as is customary for
live events, covering such Program throughout the Territory,
including (without limitation): (i) life, accident, and other
insurance covering the failure of each and any performer to perform
during such Program, which insurance shall be sufficient to make
Licensee whole for any and all costs, expenses and damages incurred
by Licensee in connection with each and any performer’s
failure to perform during such Program; and (ii) workers’
compensation insurance; and (iii) public liability insurance for
bodily injuries and property damage (including coverage for owned
and hired vehicle liability and relating to use of the venue) with
minimum limits of at least $1,000,000 per occurrence and $2,000,000
in the aggregate.
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Each such
insurance policy: (a) shall be issued by a nationally recognized
insurance carrier acceptable to Licensee; (b) may not be cancelled
without sixty (60) days prior written notice to Licensee; (c) shall
not carry a deductible larger than Ten Thousand Dollars ($10,000);
(d) shall name as an additional insured “iN Demand L.L.C. and
each member therein and division thereof, and their respective
parents, subsidiary and affiliated divisions and companies,
distributors, licensees and permitted assigns, and the respective
shareholders, directors, officers, employees and agents of the
foregoing”; (e) shall name Licensor as a named insured or as
an additional insured; and (f) shall be primary and not
contributing to or in excess of any such insurance maintained by
Licensee or its members or affiliates for the benefit of
Licensee.
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Notices: All
notices, statements, and other documents re-quired to be given in
writing shall be by personal (or messenger) delivery, by registered
or certified mail or by electronic means (except as herein
otherwise expressly pro-vided) and shall be addressed as provided
below (or such other addresses as may be designated in writing by
either party). Notice given by personal (or messenger) delivery, by
registered or certified mail or by electronic means shall be deemed
given upon receipt.
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Licensee :
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Licensor :
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345 Hudson
Street, 17 th Floor
Attn: Senior
Vice President,
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With a
separately delivered copy to:
Attn: Senior
Vice President,
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General : Capitalized terms not otherwise defined in
these Deal Terms shall have the respective meanings assigned
thereto in the Standard Terms and Conditions. Exhibits A, B, C and
D attached hereto are hereby incorporated herein and made a part
hereof. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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Please confirm Licensor’s agreement with
the above by obtaining the appropriate signature and returning both
copies of this Agreement for countersignature.
NUTECH DIGITAL,
INC.
iN DEMAND L.L.C.
By:
/s/ Lee Kasper
By: /s/ Michael S.
Berman
Title:
President/CEO
Title: Senior Vice President
Date:
2/21/2007
Date: 2/22/2007
EXHIBIT A
to
Agreement dated as of February 6,
2007
by and between NUTECH DIGITAL, INC.
(“Licensor”)
and iN DEMAND L.L.C.
(“Licensee”)
Standard Terms and
Conditions
1.
DEFINITIONS
In addition to the words, terms and phrases
defined elsewhere in this Agreement, the words, terms and phrases
(and variations thereof) defined in this Section 1 shall, for the
purposes of this Agreement, have the meanings ascribed to them
below.
(a) Accounting Statement shall have the meaning assigned to such term in
Section 3(b) of these Standard Terms and Conditions.
(b) Affiliated Systems shall mean, with respect to each Program, the
systems and other entities affiliated with Licensee (including,
without limitation, those systems and other entities that affiliate
with Licensee on an event-by-event basis) that distribute such
Program by means of Non-Standard Television on a Pay-Per-View Basis
and/or as part of an SVOD Package.
(c) Exhibition shall mean distribution, transmission, display,
exhibition, exploitation, projection or performance, and
Exhibit shall mean to cause the Exhibition.
(d) Gross Receipts shall mean, with respect to each Program, all
monies actually received by the Affiliated Systems for each SD
viewing of such Program by Program Subscribers on a Pay-Per-View
Basis pursuant to the rights herein granted, less applicable sales,
use and seat taxes, and any Program Taxes. Gross Receipts shall be,
at all times, subject to retroactive adjustment for refunds,
credits, settlements, allowances, rebates, corrections and other
similar purposes. Such retroactive adjustments may be implemented
by Licensee’s withholding appropriate amounts from such
License Fees as become payable pursuant to subsequent Accounting
Statements for such Program following the relevant retroactive
adjustment. All overpayments not recovered from amounts otherwise
payable for the month in which such matters are first reflected in
an Accounting Statement may be carried forward or backward (at
Licensee’s election) and/or, at Licensee’s election,
Licensor shall make immediate payment to Licensee of any amounts
shown to be due to Licensee.
(e) HD Service shall mean a program service owned or operated,
directly or indirectly, by Licensee or its permitted successors and
assigns, without regard to the number of channels of each such
service, which service may be advertiser-supported or
-underwritten. In addition, the Service may include offerings from
which programming can be viewed on a VOD Basis.
(f) Home Video Devices shall mean videocassettes and videodiscs that,
as sold or rented, themselves physically embody (without need for
further transfer of data or further activation or other
authorization from outside the home into the home) a motion picture
or other programming for exhibition by means of a playback device
which causes a visual image to be seen on the screen of a
television receiver, which cassettes and discs are intended for
sale or rental to the general public for use in the home and are
physically transported to the home. No electronic or other
non-tangible transmission of programming to the home from a source
outside the home for taping, recording or other storage on tape,
disc, or any other means of data retention for subsequent replay
shall constitute the Exhibition of such programming by means of
Home Video Devices, nor shall an Exhibition of programming in the
home that requires activation or authorization from outside the
home constitute the Exhibition of such programming by means of Home
Video Devices.
(g) Non-Standard Television shall mean any and all forms of Exhibition,
whether now existing or developed in the future, by any means or
media. Non-Standard Television shall include, without limitation,
Exhibition by means of cable, wire or fibre of any material,
wireless, over-the-air pay or STV in any frequency band, any and
all forms of electronic or other non-tangible transmission
(including, without limitation, the Internet) for Exhibition or for
taping, recording or other storage on tape, disc or any other means
of data retention for subsequent exhibition (whether by the
Internet or any other electronic or non-tangible distribution
medium), master antenna, satellite master
antenna, low power transmission, high definition transmission,
closed-circuit transmission, radio (for purposes of simulcast only,
and whether delivered by standard radio broadcast or otherwise),
tape, cassette and disc delivery (but excluding distribution of
Home Video Devices), single and multi-channel multi-point
distribution service and satellite transmission directly to TVROs,
all on a subscription, pay-per-view, license, rental, sale or any
other basis.
(h) Pay-Per-View Basis shall mean the mode of Exhibition of a Program
by means of Non-Standard Television in which a Subscriber elects to
view such Program (alone or in combination with other programming)
and is charged a fee for such viewing (which fee may be in payment
for multiple exhibitions of such Program (and/or combination of
programming, as the case may be)), regardless of whether any such
Exhibition occurs at a regularly scheduled time, or on a VOD Basis.
Notwithstanding the foregoing, Pay-Per-View Basis shall also
include: (i) the mode of Exhibition of a Program by means of
Non-Standard Television in which a person employed by an Affiliated
System elects to view such Program (alone or in combination with
other programming) in the course of such person’s employment,
but is not charged a fee for such viewing; and (ii) the mode of
Exhibition of a Program by means of Non-Standard Television in
which a Subscriber elects to view such Program but is not charged a
fee for such viewing on a limited promotional basis, provided, that
such Exhibition does not occur on a service that is made available
on a periodic basis of more than twenty-four (24) hours.
(i) Person shall mean any natural person, corporation,
partnership, joint venture, association, trust, governmental agency
or any other entity whatsoever.
(j) Program Subscriber shall mean, with respect to each Program, a
Subscriber that elects to view such Program on a Pay-Per-View Basis
as authorized by Licensee or the applicable Affiliated System, and
receives and pays for such viewing.
(k) Program Taxes shall have the meaning set forth in Section 3(d)
of these Standard Terms and Conditions.
(l) Physical Materials shall have the meaning assigned to such term in
Section 4 of these Standard Terms and Conditions.
(m) Related Agreement shall have the meaning assigned to such term in
Section 3(e) of these Standard Terms and Conditions
(n) SD License Fee shall mean, with respect to each Program, the
license fee set forth with respect to such Program in the Deal
Terms and payable in accordance with Section 3 of these Standard
Terms and Conditions.
(o) Studio shall mean Licensee’s playback and uplink
facilities at the Comcast Media Centers in Littleton, Colorado, or
such other facility as Licensee shall designate.
(p) Subscriber shall mean an individual customer of Licensee or
of an Affiliated System acting with the authorization of
Licensee.
(q) SVOD Basis shall mean the mode of Exhibition of a group of
programs offered to Subscribers where, for a fixed fee, the
Subscriber can watch a selection of all or a portion of such
Programs with “on demand” functionality over a set
period of time as often as desired on a subscription
basis.
(r) SVOD Package shall mean a package in which a Subscriber
elects to view programming on a SVOD Basis.
(s) Transfer House shall mean such professional video transfer
house or houses as Licensee shall designate; provided, however,
that in the absence of such designation the Transfer House shall be
the Studio.
(t) Video Reproductions shall have the meaning assigned to such term in
Section 4 of these Standard Terms and Conditions.
(u) VOD Basis shall mean the mode of Exhibition of a Program
in which a Subscriber elects to view such Program, which Exhibition
occurs on an “on demand basis” ( i.e. , at a
time or times of such individuals’ choosing, which time or
times are not regularly scheduled).
2.
LICENSE
(a) Exhibition .
(i) Licensor hereby grants to Licensee, with
respect to each Program, the exclusive rights and license under
copyright to (A) authorize the Exhibition of such Program by and
through Affiliated Systems throughout the Territory during its
License Period by means of Non-Standard Television on a
Pay-Per-View Basis and/or an SVOD Package, without limitation as to
the number of Exhibitions thereof, and (B) Exhibit the HD version
of such Program throughout the Territory during its License Period,
without limitation as to the number of Exhibitions
thereof.
(ii) Without derogating from Licensee’s rights
and remedies hereunder or otherwise, the parties acknowledge and
agree that: (A) Licensee shall have the right to reject any Program
at any time if such Program does not conform to the running time
and/or rating and content advisories set forth in the Deal Terms
and/or to the other applicable provisions of the Deal Terms; and
(B) Licensee and/or each Affiliated Systems shall have the right to
reject such Program at any time if, in their respective judgment:
(I) such Program fails to conform to community standards; (II) if
any performer or participant therein fails or has failed to conduct
himself or herself, as the case may be, with due regard to social
conventions or public morals or decency; and/or (III) if any
performer or participant therein commits or has committed any act
which degrades such performer or participant or brings such
performer or participant into public disrepute, contempt, scandal
or ridicule.
(b) Advertising and Promotion
. Licensor also hereby grants to
Licensee, with respect to each Program, the rights and license
to:
(i) use (and authorize the use of), including,
without limitation, re-produce (and authorize the reproduction of),
the title of such Program and the name, likeness, biography,
photograph and recorded voice and music of any Person appearing in
and/or associated with such Program for the purpose of advertising,
exploiting and publicizing such Program (and any programming
offered in combination therewith), its Exhibition hereunder and the
services of Licensee and of authorized exhibitors);
(ii) create and use (and authorize the creation and
use of) written summaries, ex-tracts and synopses of such Program
for the purpose of advertising, exploiting and publicizing such
Program (and any programming offered in combination therewith), its
Exhibition hereunder and the services of Licensee and of authorized
exhibitors;
(iii) use (and authorize the use of), including,
without limitation, reproduce (and authorize the reproduction of),
the advertising and publicity material provided by Licensor;
and
(iv) advertise, publicize and promote (and authorize
the advertising, publicizing and promotion of) such Program (and
any programming offered in combination therewith), its Exhibition
hereunder and the services of Licensee and of authorized exhibitors
by any means or media, but Licensee shall not, for such purposes,
utilize excerpts of more than three (3) minutes (or the length of
one entire song, if longer) from such Program.
(c) Holdbacks . With respect to each Program, Licensor shall
not itself, and shall not authorize or permit (other than pursuant
to the rights and licenses granted herein) any party or Person to:
(i) on or prior to the Exhibition Holdback Date, Exhibit any
version (including, but not limited to, all foreign language, cut
and edited versions and those produced for other media) of such
Program so as to be receivable within the Territory by any means or
media, or (ii) on or prior to the Promotion Holdback Date, promote
or announce any such Exhibition. The foregoing notwithstanding,
with respect to each Program, Licensor may authorize a third party
that is not an Affiliated System to Exhibit the version(s) of such
Program made available to Licensee hereunder, by means of
Non-Standard Television (other than the Internet) on a Pay-Per-View
Basis during such Program’s License Period, and to promote
such Exhibition.
(d) Creation of Versions . Without derogating from Licensor’s
obligation to deliver the Signal and/or Physical Materials for each
Program pursuant to Section 4(a) hereof, Licensor hereby grants to
Licensee the rights and license to create or cause the creation of:
(a) closed-captioned versions of such Program; and (b) foreign
language dubbed and/or subtitled versions of such
Program.
3.
LICENSE FEES; STATEMENTS AND
PAYMENTS
(a) In consideration of the rights and license
granted to Licensee hereunder and Licensor’s agreements and
obligations herein with respect to each Program, and subject to the
full and faithful performance of Licensor’s obligations
hereunder, Licensee shall pay to Licensor, with respect to each
Program, an amount, to be paid and accounted for in accordance with
this Section 3, equal to the SD License Fees collected by Licensee
from the Affiliated Systems with respect to the Exhibition of such
Program on a Pay-Per-View Basis. Each such payment shall be by
check(s) mailed to Licensor at the address set forth in the Deal
Terms not later than the time(s) set forth in Section 3(b)
hereof.
(b) With respect to each Program, not later than
the date five (5) business days after the end of each Accounting
Period for which SD License Fees are collected with respect to such
Program, Licensee shall send to Licensor a statement in such form
as Licensee shall designate
(“Accounting Statement”) setting forth with respect to
each Affiliated System: (i) the number of individual purchases of
such Program by Program Subscribers reported by such Affiliated
System with respect to such Accounting Period; (ii) the retail
price(s) for such Program reported by such Affiliated System with
respect to such Accounting Period; (iii) the Gross Receipts
reported by such Affiliated System with respect to such Accounting
Period; (iv) the number of Subscribers to an SVOD Package during
the first day of such Program’s month of Exhibition; and (v)
License Fees for such Program applied by Licensee during such
Accounting Period. The amount shown to be due Licensor shall be
paid concurrently with the rendition of the respective Accounting
Statement. All payments hereunder shall be made in U.S. Dollars.
All Accounting Statements and payments shall be addressed to
Licensor at the address set forth in the Deal Terms.
(c) Records and Audit Rights . (i) With respect to each Program, Licensee
shall keep at its main offices books of account directly relating
to the Exhibition of such Program hereunder (which books of account
are herein referred to as “Records”), which shall be
kept in no less detail than and at the same place as such Records
are customarily kept by Licensee.
(ii) With respect to each Program, during the
License Period therefor and for a period of two (2) years
thereafter, Licensor may, at its own expense, but not more than
once annually and only upon not less than fifteen (15) days’
prior written notice, cause the audit of the applicable Records at
the aforesaid offices solely in order to verify any Accounting
Statement. Such audit may only be conducted by a firm of Certified
Public Accountants approved by Licensee. Any such audit shall be
conducted only during reasonable business hours and in such manner
as not unreasonably to interfere with the normal business
activities of Licensee and shall not continue for more than ten
(10) business days. Licensor’s right to examine
Licensee’s Records is limited to the Accounting Statements
for the applicable Program that have been furnished within twelve
(12) months prior to such audit, and no statement may be audited
more than once. Under no circumstances shall Licensor have the
right to examine Records relating to any other picture or program
licensed by Licensee or Records relating to Licensee’s
business generally, or to examine any books or records of any
Affiliated System. Any item that Licensee accepts in an accounting
from an Affiliated System shall be binding upon Licensor. Licensor
shall furnish to Licensee a copy of any report of such audit within
thirty (30) days after Licensor’s receipt thereof.
(iii) Each Accounting Statement shall be final and
conclusive upon Licensor from and after the date twelve (12) months
after the date of receipt of such Accounting Statement. Licensor
shall be forever barred from maintaining or instituting any action
or proceeding based upon, or otherwise relating to, any transaction
had by Licensee or any Affiliated System or their respective
permitted assignees or licensees, in connection with any Program,
or the accuracy of any item embraced by or reflected on any
Accounting Statement rendered hereunder, unless written objection
thereto shall have been delivered to Licensee within twelve (12)
months after the date of receipt of such Accounting Statement on
which such transaction or item was first reflected and unless such
action or proceeding is commenced within six (6) months after
delivery of such written objection (or the expiration of the
applicable statute of limitations, if earlier).
(d) Taxes . Licensor shall be responsible for the making
of any payments with respect to any taxes now or hereafter imposed
upon Licensor by a given jurisdiction for licensing transmission
rights to any Program in the respective jurisdiction which are
based upon or arise out of the Exhibition of such Program on a
Pay-Per-View Basis hereunder (“Program Taxes”). In
those jurisdictions where Affiliated Systems are required to remit
such Program Taxes directly to the taxing authorities, then the
amounts payable by such Affiliated Systems to Licensee, as well as
the License Fees payable to Licensor, shall be reduced
accordingly.
(e) No Less Favorable Terms .
(i) If Licensor or any third party shall enter into
an agreement or other arrangement regarding any Program which,
together with any Related Agreement(s), contains any financial or
other material terms (including, without limitation, the scope of
the rights granted) which are more favorable to any pay-per-view
wholesaler or network (including, without limitation, TVN), or
similar licensee or distributor, of such Program than any
corresponding terms hereof applicable to Licensee, Licensor shall
have the obligation immediately to inform Licensee and provide
Licensee a written form of such terms. For purposes of the
foregoing, Licensor should assume that the amount of Gross Receipts
retained by Licensee with respect to each Program hereunder is
25%.
(ii) Without limiting the generality of the
foregoing, if Licensor or any third party shall enter into an
agreement or other arrangement regarding any Program which,
together with any Related Agreement(s), contains any financial or
other material terms (including, without limitation, the scope of
the rights granted) which are more favorable to any pay-per-view
retailer (including, without limitation, DirecTV and EchoStar), or
similar licensee or distributor, of such Program than any
corresponding terms hereof applicable to the Affiliated Systems,
Licensor shall have the obligation immediately to inform Licensee
and provide Licensee a written form of such terms. For purposes of
the foregoing, Licensor should assume that the amount of Gross
Receipts retained by the Affiliated Systems with respect to each
Program hereunder is 50%.
(iii) With respect to any such more favorable terms
referred to in this Section 3(e), if Licensee so elects, such more
favorable terms shall be immediately incorporated herein and made a
part hereof; provided, however, that Licensee shall not be
obligated to accept, and no agreement or other arrangement shall
fail to be deemed more favorable because of, any terms relating to
the particular property, services or materials of any entity or any
terms which cannot be met as easily by one party as by another.
Witho
