PPV/VOD LICENSE AGREEMENT

Transcription

1 PPV/VOD LICENSE AGREEMENT THIS PPV/VOD LICENSE AGREEMENT (together with all exhibits, attachments and schedules hereto, this Agreement ), dated as of [, 2012] ( Agreement Date ), is entered into by Culver Digital Distribution Inc. ( Licensor ), and in Demand L.L.C. ( Licensee ). The parties hereto agree as follows: PRINCIPAL TERMS AND CONDITIONS ( Principal Terms ) 1. DEFINITIONS. When used in this Agreement (and not otherwise defined herein) the following capitalized terms have the meanings set forth below. Section references are to sections in these Principal Terms unless stated otherwise. 1.1 Actual VOD Retail Price means for each VOD Included Program, the actual amount paid or payable by each VOD Customer (whether or not collected by Licensee) on account of such VOD Customer s selection of such VOD Included Program from the VOD Service, excluding sales, use, consumption and similar taxes. No other deductions shall be allowed unless otherwise agreed in writing between the parties. The Actual VOD Retail Price for each VOD Customer Transaction shall be established by Licensee in its sole discretion. 1.2 Actual PPV Retail Price means for each PPV Included Program, the actual amount paid or payable by each PPV Customer (whether or not collected by Licensee) on account of such PPV Customer s selection of such PPV Included Program from the PPV Service, excluding sales, use, consumption and similar taxes. No other deductions shall be allowed unless otherwise agreed in writing between the parties. The Actual PPV Retail Price for each PPV Customer Transaction shall be established by Licensee in its sole discretion. 1.3 Additional Feature means a feature-length audio-visual program that (i) otherwise qualifies to be a Current Feature hereunder but for its failure to satisfy only subsections (c), (d), (e), (f) or (h) thereunder or (ii) was initially released direct-to-video ( DTV ) in the [United States or the] Territory or was initially released on television in the [United States or the] Territory ( MFT ), with an Availability Date during the Avail Term, and for which Licensor unilaterally controls without restriction all the rights granted hereunder ( Necessary Rights ). For the avoidance of doubt, SIT Features are not Additional Features. 1.4 Approved Format means that the content is encrypted and protected using one of the content protection systems approved for UltraViolet services by the Digital Entertainment Content Ecosystem (DECE) or any other content protection system approved in writing by Licensor pursuant to Section hereof, and, in each case, said implementation meets the compliance and robustness rules associated with the chosen UltraViolet approved content protection system. The current UltraViolet approved content protection systems are: a. Marlin Broadband b. Microsoft Playready c. CMLA Open Mobile Alliance (OMA) DRM Version 2 or 2.1 d. Adobe Flash Access 2.0 (not Adobe s Flash streaming product) e. Widevine Cypher [Please propose any DRMs for use with Traditional Means.] -1-

2 Without limiting Licensor s rights in the event of a Security Breach, if the Approved Format is altered by its publisher after the Agreement Date, such as a versioned release of the Approved Format or a change to the Approved Format that materially reduces the security systems or usage rules supported as of the Agreement Date, Licensor shall have the right to withdraw its approval of any Approved Format upon not less than 30 days prior written notice. [Tim is 30 days too long? This is what was in the 2008 deal.] [TJW: 30 days is fine and withdrawal of Format is a big thing for them so they need 30 days] 1.5 Approved Device means any Approved Set-Top Box, Personal Computer, Mobile Device, Tablet, IP Connected Television, IP Connected Blu-ray Player, IP Connected PVR or Games Console, in each case, that implements the Usage Rules, supports an Approved Format, and meets the Content Protection Obligations and Requirements as set forth in Schedule. 1.6 Approved Distribution Partner means (i) all of Licensee s affiliated systems as of the date hereof set forth on Exhibit ; (ii) any other system that contractually affiliates with Licensee for PPV and/or VOD and that as of the date of such affiliation with Licensee is authorized by Licensee to exhibit on a PPV or VOD basis motion pictures for which Licensor controls PPV or VOD rights on the terms and conditions of this Agreement; and (iii) any other system approved by Licensor (such approval not to be unreasonably withheld). 1.7 Approved Set-Top Box means an addressable set-top device, approved in writing by Licensor [TJW: STB approval strictly not required but we can leave in if you want], authorized by an Approved System, designed for the exhibition of audio-visual content exclusively on a conventional television set, using a silicon chip/microprocessor architecture. An Approved Set Top Box shall not include a personal computer, games console, blu-ray player, tablet or any form of mobile phone device. 1.8 Approved System means the closed system copper wire and/or fiber optic cable and/or closed system IP/DSL network infrastructure (including ADSL/ADSL 2+/FTTH technologies) that shall at all times during the Term be (a) located solely within the Territory, (b) wholly owned and operated by Licensee or the relevant Approved Distribution Partner as the case may be and (c) authorized by Licensee to carry the Licensed Service, including (in each case, so long as each continue to meet the preceding requirements) all Approved Distribution Partners. [TJW: (a) is not required but can leave in if you want (as long as the subs are in the Territory, it doesn t matter where the wires go, and (b) also not necessary as some parts of the network may be owned by others and security does not depend on who is running it as long as its encrypted. But again leave in if you want to] 1.9 Approved Transmission Means means the Encrypted delivery via Streaming or Electronic Download of audio-visual content via Traditional Means and Non-Traditional Means. Approved Transmission Means does not include delivery via Viral Distribution. [Are we still permitting sideloading only to Portable Devices? That is what we agreed to in the 2008 deal but there was nothing about sideloading in the term sheet.] [TJW: sideloading to Portable Devices is very specific to Microsoft WMDRM and a bit old-fashioned. I would leave it out unless specifically requested] 1.10 Authenticated Subscribers means subscribers who are authorized to receive the VOD Service from Authorized Systems via Traditional Means to Approved Set-Top Boxes and who are therefore also authorized to receive such VOD Service from Authorized Systems via Non-Traditional Means to Approved Devices. -2-

3 1.11 Authorized Sites means authentication protected websites and/or applications [or user interfaces] that are wholly owned and controlled by Authorized Systems that deliver the VOD Service via Traditional Means and are primarily focused on providing content from such Authorized Systems on a VOD basis to Authenticated Subscribers who have a right to such access after providing certain identifying credentials. [Do we want to provide a list of these? In the 2008 deal we did and we limited it to 2 websites each from their Owner Partners.] [TJW: EMEA deals usually name all the websites] 1.12 Authorized Version for any Included Program, means the standard definition and any other version made available by Licensor to Licensee hereunder in Licensor s sole discretion; provided, however that Licensor shall make available to Licensee all versions of such Included Program made available by Licensor during the Term in the Territory to any Other Distributor in the same medium (i.e. VOD or PPV) including HD, 3D and widescreen versions (but not language versions other than the Licensed Language); provided, however, that Licensee must agree to the same terms and conditions offered to or agreed to by such Other Distributor and Licensor shall not be required to make available to Licensee any version of such Included Program made available to any Other Distributor as part of a Test conducted by Licensor or its licensees. [Do we want a % carve out also? We did not have one for the 2008 deal.] 1.13 Availability Date means, with respect to an Included Program, such Included Program s PPV Availability Date and/or VOD Availability Date Caching means non- permanent storage or tempor ary buffering of less than an entire motion picture so as to enable exhibition of such motion picture on a continuous basis and/or with VCR Functionality until the end of the 24 hour viewing period of such motion picture. The caching of content shall at all times comply with the Content Protection Require m e n t s in schedule??. [TJW: please add this] 1.15 Closed Cable IP Network means the closed system copper wire and/or fiber optic cable and/or closed system IP network and/or IP/DSL network infrastructure (including ADSL/ADSL 2+ technologies) located solely within the Territory [TJW: don t need] in each case wholly owned and operated by Licensee as the case may be [TJW: don t need]; provided for the avoidance of doubt that such system shall exclude distribution by means of the so-called "open" Internet, World Wide Web, Internet-Protocol delivered, PC-enabled, wireless or any other similar or analogous system, except that Licensee may use Internet Protocol for transport purposes within the closed system copper wire and/or fiber optic cable provided that this system shall not be directly receivable or accessible by any unauthorized third party Commercial Establishments means public or private facilities open to the general public, including, without limitation, restaurants, lounges, and any place that charges a direct or indirect fee for admission Current Feature means a feature-length audio-visual program (a) that is initially released theatrically, in [the United States or] the Territory, (b) with an Availability Date during the Avail Term, (c) is in the English language or a Sony Pictures Classics release produced in a language other than English, (d) was produced substantially in color, (e) is not a documentary or a concern film, (f) is not rated by the MPAA more restrictively than R (or a comparable rating if a new rating system replaces the MPAA rating system), (g) the applicable Availability Date for which is either (i) no more than 12 months after its initial theatrical release by SPE or another Major Studio in [the United States or] the Territory, or, in the case of a Sony Pictures Classics release, no more than 14 months after its initial theatrical release in [the United States or] the Territory, (h) with a Domestic Box Office of at least $1 million and (j) for which Licensor unilaterally controls without restriction all Necessary Rights. Notwithstanding the foregoing, -3-

4 Current Features do not include SIT Features. [Did you also want to include the criteria from the 2006 deal under (v) and (vi)(2)? I wasn t sure because we didn t talk about them so I didn t include them here.] 1.18 Customer means a VOD Customer or PPV Customer Customer Transaction means a VOD Customer Transaction or a PPV Customer Transaction Domestic Box Office means, with respect to a motion picture, United States and Canadian box office receipts of such motion picture as reported in Variety or The Hollywood Reporter as of the date 90 days prior to the beginning of the month in which such motion picture s VOD or PPV availability date occurs Electronic Download means the transmission of a digital file containing audiovisual content from a remote source, which file may be stored and the content thereon viewed at a time subsequent to the time of its transmission to the viewer Encrypted means, with respect to a signal, that both the audio and video portions of such signal have been changed, altered or encoded to securely and effectively prevent the intelligible reception of such signal without the use of fully authorized decoding equipment to restore both the audio and video signal integrity High Definition means any resolution that is 720p or higher, but in no event higher than 1080p Home Video Street Date for each Included Program means the date on which such Included Program is first made available in the Territory for sale to the general public in the standard DVD format Included Program means each of the programs licensed in accordance with Section Internet Delivery means the Encrypted streamed delivery over or (as applicable) temporary downloading via the global, public network of interconnected networks (including the so-called Internet, Internet2 and World Wide Web), each using technology which is currently known as Internet Protocol ( IP ), free to the consumer (other than a common carrier/isp access charge), whether transmitted over cable, DTH, FTTH, ADSL/DSL, Broadband over Power Lines ( BPL ) or other means IP Connected Blu-ray Player means a device capable of playing Blu-ray discs which is also capable of receiving protected audiovisual content via a built-in IP connection, and transmitting such content to a Television or other display device IP Connected PVR means a device capable of recording audiovisual content for personal storage and use which is also capable of receiving protected audiovisual content via a built-in IP connection, and transmitting such content to a Television or other separate display device IP Connected Television means a Television capable of receiving and displaying protected audiovisual content via a built-in IP connection. -4-

5 1.30 IP/DSL Network means [the closed system copper wire and/or fiber optic cable and/or closed system IP/DSL network infrastructure (including ADSL/ADSL 2+ technologies) located solely within the Territory in each case wholly owned and operated by Licensee [TJW: don t need] as the case may be; provided for the avoidance of doubt that such system shall exclude distribution by means of the so-called Internet, World Wide Web, Internet-Protocol delivered, PC-enabled, wireless or any other similar or analogous system, except that Licensee may use Internet-Protocol delivery within a closed Subscriber DSL or broadband network (only) for relay of the television signal at a stage prior to the delivery over the Last Mile IP Network to the end Subscriber for television exhibition via the Approved Device on the basis that such delivery by Internet-Protocol shall not be directly receivable or accessible by any authorized Subscriber or any unauthorized third party.] [shall mean the closed system copper wire and/or fiber optic cable and/or closed system IP/DSL network infrastructure (including ADSL/ADSL 2+/FTTH technologies) used by Licensee for delivery to the Approved Devices of authorised Subscribers only and where services delivered over such infrastructure are not openly accessible (e.g. are not accessible via a website).] 1.31 Library Feature means any feature-length audio-visual program made available by Licensor during the Avail Term for which Licensor unilaterally controls without restriction all Necessary Rights and that does not qualify as a Current Feature hereunder due to its failure to meet the criteria set forth in subclause (g) of Section [Did you want to include the language in 6(c) of the 2006 deal? If so, would the economics be the same as the old deal or just want the library pricing is now?] 1.32 Licensed Language for each Included Program means its original language version, or, if its original language version is not English, the original language version dubbed or subtitled in English. [2006 deal also gave them Spanish if available.] 1.33 Licensed Services means the VOD Service and the PPV Service Major Studio means Sony, Universal, Fox, Paramount, Warner Bros., DreamWorks, MGM and Disney (and their respective successors), and their respective releasing labels Mobile Delivery means the transmission or retransmission in whole or in part of audio and/or visual signals via cellular wireless networks integrated through the use of: (i) any of the following protocols: 2G ( GSM, CDMA), 3G (UMTS, CDMA-2000), 4G (LTE, WiMAX), or (ii) any additional protocols, or successor or similar technology as may be agreed in writing from time to time Mobile Device means an individually addressed and addressable IP-enabled mobile hardware device of a user, excluding a desktop or laptop or personal computer, and generally receiving transmission of a program over a transmission system designed for mobile devices such as GSM, UMTS, LTE and IEEE ( wifi ). Mobile Device shall not include a set top box, computer or games console. [TJW: can we replace all instances of Mobile Device with Mobile Phone? Phone is more tightly defined thus: "Mobile Phone" shall mean an individually addressed and addressable IP-enabled mobile hardware device of a user, supporting an Approved Format, generally receiving transmission of a program over a transmission system designed for mobile devices such as GSM, UMTS, LTE and IEEE ( wifi ) and designed primarily for the making and recieving of voice telephony calls. Mobile Phone shall not include a Personal Computer or Tablet. ] 1.37 Non-Traditional Means means Internet Delivery or Mobile Delivery. -5-

6 1.38 North American Box Office with respect to an Included Program means the highest aggregate United States and Canadian gross box office receipts earned by such title, as reported in Daily Variety or The Hollywood Reporter. If Licensor believes that the latest of such reports does not reflect the most current number of such receipts, it shall have the right to provide a certificate setting forth the correct amount Other Distributor means any other PPV Distributor or other VOD Distributor Other PPV Distributor means any distributor other than an affiliate of Licensor that distributes Licensor s audio-visual content during the Term on an output basis (i.e., not on an occasional one-off or package basis) via the Traditional Means in the Territory for residential PPV exhibition Other VOD Distributor means any distributor other than an affiliate of Licensor that distributes Licensor s audio-visual content during the Term on an output basis (i.e., not on an occasional one-off or package basis) via the Approved Transmission Means in the Territory for residential VOD exhibition Personal Computer shall mean an IP-enabled desktop or laptop device with a hard drive, keyboard and monitor, designed for multiple office and other applications using a silicon chip/microprocessor architecture, and supporting one of the following operating systems: Windows XP, Windows 7, Mac OS, subsequent versions of any of these, and other operating system agreed in writing with Licensor PPV Customer means each unique account that is authorized to receive the PPV Licensed Service on an Approved Set-Top Box PPV Customer Transaction means each order transaction initiated by a PPV Customer whereby a PPV Customer is authorized by Licensee to receive an exhibition of all or a part of a single PPV Included Program from the PPV Service, whether or not payment is actually received PPV Availability Date means, with respect to a PPV Included Program, the date on which such title is first made available to Licensee for exhibition on a PPV basis hereunder, as specified in Section PPV License Period with respect to each PPV Included Program means the period during which Licensee shall make such title available for exhibition on a PPV basis hereunder, as specified in Section PPV Included Program means each of the programs licensed for exhibition on the PPV Service in accordance with Section PPV Service means the PPV programming service that is, and at all times during the Term shall be, branded as in Demand and wholly-owned and operated by Licensee PPV Viewing Period means, with respect to each PPV Customer Transaction, the time period (a) commencing at the time the PPV Customer is initially technically enabled to view a PPV Included Program on any Approved Set Top Box but in no event earlier than its PPV Availability Date, and (b) ending on the earliest of (i) 48 hours after the PPV Customer first commences viewing such PPV Included Program, (ii) 30 days after the time the PPV Customer is initially technically enabled to view such PPV Included Program, and (iii) the expiration of the PPV License Period for such PPV Included Program; provided, however, that if Licensor grants a longer viewing period granted by Licensor to any Other PPV Distributor, Licensor shall grant -6-

7 such longer viewing period to Licensee so long as Licensee agrees to the same terms and conditions offered to or agreed to by such Other PPV Distributor and Licensor shall not be required to make available to Licensee any longer viewing period made available to any Other Internet VODPPV Distributor as part of a Test. [This MFN was given in both the 2006 and 2008 deals, but the 2006 deal did not have as many carveouts as the 2008 deal such as the carveout for affiliates, but I think we need that.] 1.50 Private Residence means a private residential dwelling unit, and shall exclude Temporary Dwelling Units, Public Areas and Commercial Establishments Public Areas include, without limitation, public or common rooms, waiting rooms, lobbies and public meeting rooms, or other similar areas which are open to the general public Push Download means the transmission and storage of a digital file containing audio-visual content from a remote source to a customer s device at a time specified by the service provider and not in response to the request of a customer, which file is accessible and viewable by the customer solely during the license period for such content and solely upon completion of such customer s purchase or selection thereof Qualifying Content Provider means Paramount Pictures, Twentieth Century Fox, Universal Studios, Metro-Goldwyn-Mayer, DreamWorks SKG, The Walt Disney Company, Warner Bros., and any future member(s) of the MPAA, and any of their respective affiliates and subsidiaries Residential Use shall mean the right to exhibit a program or programs in residential homes and private dwelling units (including fraternity and sorority houses, dormitories, hotels, motels, inns, lodges, hospitals, nursing homes, convalescent homes, military bases, ships, oil rigs and prisons) or common residential areas in firehouses and oil rigs, and (except as expressly set forth above with respect to common residential areas in firehouses and oil rigs) not the right to exhibit such program or programs in any common area or area open to the general public or in any area to which an admission fee is charged, nor shall Residential Use include the right to exhibit or authorize the exhibition of a program on any mobile or cellular device, regardless of the location in which such exhibition occurs. [Need to check with non-theatrical group.] 1.55 SIT Features means a feature-length audio-visual program (a) that is initially released theatrically in the Territory, (b) with an Availability Date during the Avail Term, (c) that has an Availability Date that is day and date with the theatrical release of such program in the [United States or the] Territory and (d) for which Licensor unilaterally controls without restriction all Necessary Rights Standard Definition means any resolution that is lower than 720p Streaming means the transmission of a digital file containing audio-visual content from a remote source for viewing concurrently with its transmission, which file, except for temporary caching or buffering of a portion thereof (but in no event the entire file), may not be store or retained for viewing at a later time (i.e., no leave-behind copy no playable copy as a result of the stream resides on the receiving device) Subscription Video-On-Demand or SVOD means the point-to-point electronic delivery of an audio-visual program or programs from a remote source to a customer in a Private Residence in response to such customer s request (a) for which such customer is charged a fixed periodic fee (no more frequently than monthly), and not on a per-program(s) or per exhibition(s) -7-

8 basis, which fee is unaffected in any way by the purchase of other programs, products or services, but not referring to any fee in the nature of an equipment rental or purchase fee; and (b) the exhibition start time of which is at a time specified by the customer in its discretion. SVOD shall not include, without limitation, pay-per-view, electronic sell-through (or the equivalent thereof), manufacture-on-demand, home video, premium pay television, basic television or free broadcast television exhibition, as rights in each such media are otherwise licensed by Licensor in the Territory Tablet means any individually addressed and addressable IP-enabled device with a built-in screen and a touch screen keyboard, for which user input is primarily via touch screen, that is designed to be highly portable, not designed primarily for making voice calls, and runs on one of the following operating systems: ios, Android, WebOS or RIM s QNX Neutrino (each, a Permitted Tablet OS ) Tablet shall not include Zunes, personal computers, game consoles (including Xbox Consoles), set-top-boxes, [portable media devices, PDAs], mobile phones or any device that runs an operating system other than a Permitted Tablet OS Territory means (i) United States, its commonwealths, territories and possessions (including, without limitation, Puerto Rico, the U.S. Virgin Islands, Guam and Saipan); and (ii) if and to the extent Sony unilaterally controls the requisite rights for VOD and/or PPV exhibition hereunder during the entire VOD License Period or PPV License Period, as applicable, the Bahamas, Bermuda, the Cayman Islands, Curacao, the Netherlands Antilles (including, without limitation, St. Maarten), and the West Indies (provided that the exploitation of such rights in such countries does not conflict with other windows in such countries (including, without limitation, theatrical and home video)). Temporary Dwelling Units shall refer to private or semi-private dwelling units in a hotel, motel, hospital, nursing home, dormitory, prison or similar structure, institution or place of transient residence, not including Public Areas therein Test shall mean a bona fide test of an experimental system, service or business model that may be licensed and conducted by Licensor with one or more of its licensees on a limited (e.g. limitations as to duration, geographic location, volume of titles, etc.) basis (but in any event no longer than six (6) months in the aggregate per Test). [on-line version of this definition was less restrictive in that it didn t have the hard 6 month restriction but this is what you put in the term sheet.] 1.62 Traditional Means means IP/DSL Network or Closed Cable IP Network Trailer means a scene or sequence or series of scenes from an Included Program approved or separately provided by Licensor to Licensee, and used to advertise or promote that Included Program s exhibition on a Licensed Service and no other person, product or service Usage Rules means the content usage rules applicable to Included Programs available on the Licensed Service, as set forth in the attached Schedule. Licensor shall have the right to notify Licensee from time to time that the Usage Rules applicable to an Approved Format or Approved Set-Top Box shall be changed by a date certain (each, an Update ), and in such case, Licensee shall adhere to and apply each Update prospectively from notice thereof to all Included Programs VCR Functionality means the capability of a Customer to perform any or all of the following functions with respect to the exhibition of an Included Program: stop, start, pause, play, rewind and fast forward (but not including recording capability). In the event Licensor offers any Other Distributor DVD-like jump to scene functionality for any motion pictures that are also Included Programs hereunder, Licensor shall also make such functionality available to Licensee for such Included Programs pursuant to the applicable terms and conditions (if any); provided, however, that Licensor shall not be required to make available to Licensee any such -8-

9 functionality made available to any Other Distributor as part of a Test.. [This MFN was in the 2008 deal but not in the 2006 deall. Do we still want to give this? Will you remember it is in here?] 1.66 Video-On-Demand or VOD means the point-to-point electronic delivery of a single audio-visual program from a remote source to a customer in a Private Residence in response to such customer s request (a) for which the customer pays a per-transaction fee solely for the privilege of viewing each separate exhibition of such program during the viewing period (or multiple exhibitions of such program, each commencing during the viewing period), which fee is unaffected in any way by the purchase of other programs, products or services, but not referring to any fee in the nature of an equipment rental or purchase fee; and (b) the exhibition start time of which is at a time specified by the customer in its discretion. Video-On-Demand shall not include, without limitation, pay-per-view, electronic sell-through (or the equivalent thereof), manufactureon-demand, home video, premium pay television, basic television or free broadcast television exhibition, as rights in each such media are otherwise licensed by Licensor in the Territory Viral Distribution means the retransmission or redistribution of an Included Program, either by the Licensee or by the Customer, by any method, including, without limitation: (a) peer-to-peer file sharing (as such practice is commonly understood in the online context, (b) digital file copying or retransmission, or (c) burning, downloading or other copying of such Included Program to any removable medium (such as a DVD) from the initial download targeted by the Licensed Service and distributing copies of such Included Program on such removable medium VOD Availability Date means, with respect to a VOD Included Program, the date on which such title is first made available to Licensee for exhibition on a VOD basis hereunder, as specified in Section VOD Customer means each unique account that is authorized to receive the VOD Licensed Service on an Approved Device VOD Customer Transaction means each order transaction initiated by a VOD Customer whereby a VOD Customer is authorized by Licensee to receive an exhibition of all or a part of a single VOD Included Program from the VOD Service, whether or not payment is actually received VOD Included Program means each of the Sprograms licensed for exhibition on the VOD Service in accordance with Section VOD License Period, with respect to each VOD Included Program, means the period during which Licensee shall make such title available for exhibition on a VOD basis hereunder, as specified in Section VOD Service means the VOD programming service that is, and at all times during the Term shall be, branded as in Demand and wholly-owned and operated by Licensee VOD Viewing Period means, with respect to each VOD Customer Transaction, the time period (a) commencing at the time the VOD Customer is initially technically enabled to view a VOD Included Program on any Approved Device but in no event earlier than its VOD AAvailability Date, and (b) ending on the earliest of (i) 48 hours after the VOD Customer first commences viewing such VOD Included Program, (ii) 30 days after the time the VOD Customer is initially technically enabled to view such VOD Included Program, and (iii) the expiration of the VOD License Period for such VOD Included Program; provided, however, that if Licensor grants a longer viewing period granted by Licensor to any Other VOD Distributor during the Term, -9-

10 Licensor shall grant such longer viewing period to Licensee so long as Licensee agrees to the same terms and conditions offered to or agreed to by such Other VOD Distributor and Licensor shall not be required to make available to Licensee any longer viewing period made available to any Other Internet VOD Distributor as part of a Test. [This MFN was given in the 2006 and 2008 deals, but the 2008 deal is better because it has more carveouts such as to affiliates. I have used the 2008 language here.] 2. LICENSE. 2.1 Rights Granted. 2.1.i Licensor hereby grants to Licensee, and Licensee hereby accepts, a limited non-exclusive, non-transferable license to exhibit on the terms and conditions set forth herein (a) each VOD Included Program on a Video-On-Demand basis during its VOD License Period on the VOD Service pursuant solely to a VOD Customer Transaction and (b) each PPV Included Program on a PPV basis on the PPV Service during its PPV License Period on the PPV Service pursuant solely to a PPV Customer Transaction, in each case solely in the Licensed Language and solely to VOD Customers or PPV Customers, as the case may be, in the Territory, delivered in the Approved Format by theby Traditional Means over the Approved Systems for reception by an Approved Set Top Box in a Private Residence and for viewing on such Approved Set-Top Box s associated video monitor or television set in accordance with the Usage Rules and subject at all times to the Content Protection Obligations and Requirements set forth in Schedule C. Licensor additionally hereby grants to Licensee, and Licensee hereby accepts, a limited non-exclusive, nontransferable license to exhibit on the terms and conditions set forth herein each VOD Included Program in the Licensed Language on a Video-On-Demand basis during its VOD License Period on the VOD Service pursuant solely to a VOD Customer Transaction, solely to VOD Customers who are Authenticated Subscribers of Authorized Systems in the Territory, delivered in the Approved Format via Non-Traditional Means by and through theauthorizedthe Authorized Websites, in each case, for reception by an Approved Device in a Private Residence and for viewing on such Approved Device s associated video monitor or television set in accordance with the Usage Rules and subject at all times to the Content Protection Obligations and Requirements set forth in Schedule C. Except as expressly set forth herein, Licensor shall not be subject to any holdback at any time with respect to the exploitation of any Included Program in any version, language, territory or medium or by any transmission means, in any format to any device in any venue or in any territory. 2.1.ii Right to Sublicense. Licensee shall be entitled to sublicense the distribution of the Licensed Service only to the Approved Systems; provided, that any act or omission by the Approved Systems which would be a breach of this Agreement if done for failed to be done by Licensee shall be deemed to be a breach of this Agreement by Licensee. 2.1.iii High Definition. Unless otherwise authorized by Licensor in writing, Licensee shall exhibit the Included Programs in Standard Definition resolution only. [Licensor may, from time to time during the Avail Term and in its sole discretion, authorize Licensee to exhibit certain Included Programs in High Definition resolution by providing Licensee with written notice of which Included Programs are available for exhibition in High Definition. ] 2.1.iv Neither Licensee nor any Authorized System shall charge subscribers Customers any monthly or other periodic fees for access to any Licensed Service, other than: (i) a monthly or periodic access, service or equipment use fee also applicable to programming other than the Licensed Services and/or any Included Program, when such fee also covers the ability to receive the basic or entry (i.e., lowest) tier of service (which tier does not consist solely of the PPV Service and/or the VOD Service) and, in the case of VOD, when such fee also covers the ability to receive the basic or entry (i.e., lowest) tier of digital service (which tier does not consist solely -10-

11 of the PPV Service and/or the VOD Service); and (ii) an equipment use fee also applicable to programming other than the Licensed Services and/or any Included Program, when such fee also covers the ability to receive the basic or entry (i.e., lowest) tier of addressability; provided, however, such monthly or periodic access, service or equipment use fee shall not be credited against the single fee payable by the consumer for the PPV and/or VOD exhibition of any Included Program. 2.1.v Nothing in this Agreement shall prohibit Licensee or any Authorized System from authorizing Subscribers to view Included Programs through devices that enable VCR Functionality, and the availability of VCR Functionality shall not be relevant to the computation of license fees hereunder. 2.1.vi Licensee and each Authorized System may make Included Programs available hereunder through a Push Download subject to compliance with a copy protection standard reasonably acceptable to Licensor, which standard shall be no more restrictive upon Licensee and the Authorized Systems than the standard imposed upon any Other Distributor of Included Programs in the Territory through a Push Download. The use of Push Download in connection with the exhibition of any Included Program hereunder shall not be relevant to the computation of license fees hereunder. [The use of the Other Distributor definition here was not in the 2006 agreement but the rest of the language is from thet eh 2006 agreement.] 2.1.vii Pursuant to the rights granted herein with regard to PPV and VOD, an Included Program may only be retained by theby a Customer consumer for subsequent viewing at a time later than the delivery thereof by Licensee or an Authorized System, as the case may be, if: (i) the consumer Customer elects to record and store such Included Program on an Approved Set-Top Box or other recording device pursuant to a separate, independent action (i.e., an action in addition to the act of electing to purchase such exhibition); or (ii) if there is not such separate, independent action, and such Included Program is recorded and stored on the Approved Set -top Box, such Included Program is automatically deleted from such set top box within 24 hours after such Included Program is delivered to the Approved Set-top Box. The foregoing notwithstanding, a Push Download of an Included Program shall not in and of itself be deemed to be retained by the consumer for purposes of this Section 2.17, and Caching shall not be deemed to be retained by the consumer for purposes of this Section Additional Approved Formats. From time to time during the Term, Licensee may request Licensor to grant approval for an additional content protection system to be deemed an Approved Format hereunder ( Proposed Authorized DRM ) by delivery of a DRM Approval Addendum in form and substance to be agreed by the parties identifying the Proposed Authorized DRM. Licensor will, within thirty (30) days after delivery of such DRM Approval Addendum, either (i) approve the Proposed Authorized DRM by signing and returning the DRM Approval Addendum or (ii) notify ADSI Licensee thatthat the Proposed Authorized DRM is not approved and provide an explanation for such non-approval; provided, however, that (a) Content ProviderLicensor shall not withhold its approval of the Proposed Authorized DRM for VOD or PPV that Content ProviderLicensor has approved for distribution of theatrical motion pictures on any VOD or PPV service, as applicable, in the Territory delivered by similar transmission means and (b) if any such other approval of the Proposed Authorized DRM has been granted by Licensor on a limited (e.g., as to content or device type or transmission means) or temporary (i.e., for a period shorter than the full term the agreement pursuant to which such VOD or PPV service is authorized to use such Proposed Authorized DRM) basis (any such limitation imposed on any other VOD or PPV service, an Approval Limitation ), then Content ProviderLicensor shall have the right to condition approval of the Proposed Authorized DRM on such Approval Limitations (in which case Licensor shall notify Licensee in writing of such Approval Limitations; provided however that Content Provider Licensor shall not be required to breach any confidentiality -11-

12 obligations it may have with respect to its other approvals of the Proposed Authorized DRM). Notwithstanding the foregoing, if the Proposed Authorized DRM ceases to be a DRM approved for another VOD or PPV service in the Territory for any reason, including without limitation any expiration or termination of the agreement with such other service, then such Proposed Authorized DRM shall immediately cease to be an Approved Format hereunder when Licensor notifies Licensee of such cessation. 2.3 Restricted Pictures. With respect to each motion picture that meets the definition of Current Features and for which Sony Licensor controls the requisite rights for VOD and/or PPV exhibition hereunder but does not unilaterally control such rights (due to A-list talent approval restrictions), such motion picture shall not be offered to any other PPV or VOD provider in the Territory without Licensor offering such motion picture to Licensee on the same terms and conditions (unless the party with the requisite consent or approval. [This was in the 2006 deal do we still want to give this to them? Will you remember this?] 2.4 Restrictions. Except as set forth in Section hereof, 2.5 Licensee agrees that without the prior written consent of Licensor, or except as otherwise set forth in this Agreement: (a) the license granted hereunder may not be assigned, licensed or sublicensed in whole or in part; (b) no Included Program may be delivered, transmitted, exhibited or authorized for reception other than as set forth in Section 2.1; (c) no person or entity shall be authorized or permitted by Licensee to do any of the acts forbidden herein; and (d) Licensee shall not have the right to transmit or deliver the Included Programs in an up-converted or analogous format or in a low resolution, down-converted or analogous format. Licensor reserves the right to inspect and approve the picture quality and user experience of the Licensed Service with Licensee s prior consent, with such consent not to be unreasonably withheld. 2.6 Licensee shall not be permitted in any event to offer or conduct promotional campaigns for the Included Programs offering free buys, including without limitation two-forone promotions (by coupons, rebate or otherwise) without Licensor s prior written consent. Licensee shall not charge any club fees, access fees, monthly service fees or similar fees for general access to either Licensedthe VOD Service or PPV Service (whether direct or indirect), or offer the Included Programs on a subscription basis or negative option basis (i.e., a fee arrangement whereby a customer is charged alone, or in any combination, a service charge, a separate video-on-demand charge or other charge but is entitled to a reduction or a series of reductions thereto on a title-by-title basis if such customer affirmatively elects not to receive or have available for reception such title) without Licensor s prior written consent. The Licensed VOD Services may not be advertising supported or sub-distributed, co-branded, syndicated, white labeled or powered (e.g., Yahoo! Video powered by in Demand ). The Licensed Services may not be advertising supported or sub-distributed, co-branded, syndicated, white labeled or powered (e.g., Yahoo! Video powered by in Demand ). 3. AVAIL TERM; TERM. 3.1 Avail Term. The Avail Term during which Licensor shall be required to make titles available for licensing and Licensee shall be required to license titles hereunder consists of the Initial Avail Term together with the Extension Period, if any. The Initial Avail Term commences on [the Agreement Date] and terminates on [, 2013]. Thereafter, the Initial Avail Term automatically extends for one successive 12-month period (the Extension Period ) if Licensee has developed a plan towards launching an Ultraviolet enabled UV DHE electronic sellthrough service during the Initial Avail Term and has made meaningful progress in implementing such plan during the Initial Avail Term, all as evidenced by reasonable documentation presented to Licensor at least 30 days prior to the expiration of the Initial Avail Term. Each 12-month -12-

13 period during the Avail Term beginning [upon the Agreement Date] is an Avail Year, with the first such Avail Year being Avail Year 1, and the second, if any, being Avail Year 2. It is acknowledged that the License Period for an Included Program may expire after the end of the Avail Term. 3.2 Term. The Term of this Agreement commences on the Agreement Date and expires on the earlier to occur of (a) the last day of the last License Period to expire hereunder and (b) the termination of this Agreement in accordance with the terms hereof. 4. COMMITMENT; AVAILABILITY DATE; LICENSE PERIOD. 4.1 Commitment. 4.2 Included Program Commitment. Licensee shall license from Licensor during each Avail Year all VOD Included Programs and all PPV Included Programs. VOD Included Programs for each Avail Year are the following Included Programs with a VOD Availability Date during such Avail Year: all Current Features, all Additional Features, no fewer than 1 SIT Feature per month in such Avail Year, no fewer than Library Features and no fewer than 30 (in the aggregate) DTV and/or MFT. PPV Included Programs for each Avail Year are the following Included Programs with a PPV Availability Date during such Avail Year: all Current Features, all Additional Features, no fewer than 1 SIT Feature per month in such Avail Year, no fewer than Library Features and no fewer than 4 (in the aggregate) DTV and/or MFT. [Were these numbers supposed to be in the aggregate or per Licensed Service?]. 4.3 Current Avail Lists. Licensor shall provide the then-current list of its Current Features ( Current Avail List ) that are available for exhibition on the Licensed Services, together with their VOD Availability Dates and PPV Availability Dates no later than 89 days prior to the beginning of the month in which such Current Feature's applicable availability date occurs. Such list for the VOD Service shall be the same list provided to all Other VOD Distributors distributing in the Territory during the Term. Such list for the PPV Service shall be the same list provided to all Other PPV Distributors distributing in the Territory during the Term. Licensee shall deliver a booking confirmation for each Licensed ServiceCurrent Feature no later than 60 days prior to such Current Feature's applicable availability date. Licensor provides access to the relevant materials no later than 15 business days following receipt of a booking confirmation. Subject to 4.1 and the second sentence of this Section 4.3, Licensor shall have the right to alter Availability Dates for Current Features at any time for any reason either before or after Licensor has provided the Current Avail List and either before or after Licensee has delivered its booking confirmation. 5. Library Film Selection Process. Licensor shall provide a list of Library Films available for the next calendar year for the Licensed Services and their VOD Availability Dates and PPV AvailabiiltyAvailability Dates ( Library Avail List ) no later than by September 1st of each Term Year. Such list Library Avail List for the VOD Service shall be the same list provided to all Other VOD Distributors distributing in the Territory during the Term. Such list Library Avail List for the PPV Service shall be the same list provided to all Other PPV Distributors distributing in the Territory during the Term. Simultaneous with the Library Avail List, Licensor shall also provide a list ( Other Avail List ) of Additional Features, including DTVs and MFTs, and SIT Features with an Availability Date in the next calendar year for the Licensed Services. Licensee shall make selections for Library Features, SIT Features and Additional Features and deliver a booking confirmation no later than 30 days following September 1st. Licensor shall provide access to materials no later than 15 business days following receipt of a booking confirmation. Subject to Section 4.1, the second sentence and the last sentence of this Section 4.4, Licensor shall have the right to alter Availability Dates for Library Filmsall such Included Programs at any time for any reason either before or after Licensor has provided the Library Avail List or Other Avail List and either before or after Licensee has delivered its booking confirmation. For purposes of -13-

14 clarification and not of limitation, so long as Licensor provides to Licensee the same Library Avail List, Licensee agrees that due to Licensee s and Oother VOD ddistributor s selection of the particular Library Films and the applicable License Periods, Licensee may not have the same Library Films as an every other Other VOD Ddistributors at a given time. In addition, and notwithstanding any of the foregoing, Licensor and Licensee agree that Licensor may consider in good faith requests of one-off clearances by Licensee as well as by other VOD distributors, and granting such requests by such other distributorsother VOD distributor shall not be a violation of this Section 4.4.Licensor shall provide Licensee with periodic availability lists setting forth each Included Program to be licensed hereunder along with its VOD Availability Date and PPV Availability Date; provided, however, all such availability dates shall be notified to Licensee no later than 89 days prior to the beginning of the month in which such PPV Availability Date or VOD Availability Date occurs.. If Licensee fails to select the Library Features, SIT Features, DTV and MFT required to be licensed under this Section 4.15 within 30 days after receipt of such availability listthe Library Avail List and Other Avail List, Licensor shall have the right to designate such Library Features, SIT Features, DTV and MFT by providing Licensee written notice thereof. 5.1 PPVAvailability Dates. The PPV Availability Date for each Current Feature will be determined by Licensor in its sole discretion, but shall occur no later than 60 days after such Current Feature s Home Video Street Date in the U.S. (subject solely to Section 8(c) below). The VOD Availability Date for each Current Feature will be determined by Licensor in its sole discretion, but shall occur no later than 60 days after such Current Feature s Home Video Street Date in the U.S (and no later than the PPV Availability Date therefor). The PPV Availability Date and VOD Availability Date for all other Included Programs will be determined by Licensor in its sole discretion. 5.1.i The PPV Availability Date for each Current Feature will be no later than day and date with any Other PPV Provider in the Territory; provided, however, that Licensor may authorize an earlier PPV availability date for a Current Feature by such a third party Other PPV Provider in the Territory solely in the event that: (i) such earlier availability date is no later than 46 days after such Current Feature s Home Video Street Date in the U.S. and (ii) if such PPV provider has agreed to offer Licensor more favorable financial, content protection, marketing, promotion, exhibition commitments or other terms ( Early PPV Avail Terms ); provided that Licensee is offered the opportunity to have the same PPV availability date upon matching such Early PPV Avail Terms. In the event that Licensee does not elect to match such Early PPV Avail Terms with respect to any Current Feature for which the earlier PPV availability date offered to such other PPV provider occurs no later than 30 days after U.S. home Home video Video street Street datedate, the PPV Availability Date for such Current Feature may occur no later than 60 days after such earlier PPV availability date. In the event that Licensee does not elect to match such Early PPV Avail Terms with respect to any Current Feature for which the earlier PPV availability date offered to such other PPV provider occurs 30 days or more after U.S. home video street date, the PPV Availability Date for such Current Feature may occur up to the later of: (i) 30 days after such earlier PPV availability date, but in no event more than 75 days after such Current Feature s U.S. home Home video Video street Street datedate, and (ii) solely to the extent required pursuant to the terms of a written agreement with such Other PPV Provider entered into prior to the date hereof, if such 30th day is in the same calendar month as such earlier PPV availability date, on the first day of the immediately succeeding calendar month; provided, however, that in no event shall such PPV Availability Date occur more than 75 days after such Current Feature s U.S. home Home Video Street Date (except to such limited extent as may be required pursuant to the operation of the immediately preceding clause (ii)). For the avoidance of doubt, the provisions of this Section 4.2 shall not be triggered by the customary hotel window that customarily precedes the window granted hereunder or any exhibition on a reasonably limited/test basis. [consider carving out PVOD window altogether?][why do these guys get the right to an earlier date than they would have otherwise gotten if they fail to match?] -14-