DIGITAL HOME ENTERTAINMENT LICENSE AGREEMENT
This Digital Home Entertainment License Agreement (this “Agreement”), made as of ______, 2013 (the “Effective Date”), by and between Culver Digital Distribution Inc., with offices at 10202 West Washington Blvd., Culver City, California, USA, 90232-3195 (“Studio”), and Comcast Cable Communications, LLC, with offices at One Comcast Center, Philadelphia, Pennsylvania, USA, 19103 (“Comcast”), sets forth the terms and conditions for the sale and distribution on a DHE basis of certain of Studio’s video content. In consideration of the mutual covenants hereinafter set forth, Studio and Comcast agree as follows:
1.Definitions.
1.1.“Account” shall mean a single Non-UV Customer’s Licensed Service account (and, without limitation, a household account with multiple users and/or multiple Approved Devices may constitute a single Non-UV Customer’s account) with verified credentials, which shall (a) consist of at least a user identification and password of sufficient length to provide reasonable protection against brute force attacks, (b) include reasonable measures to prevent unwanted sharing of such credentials (i.e., allowing access to active credit card or other financially sensitive information), and (c) be transmitted securely to reasonably ensure such Non-UV Customer’s privacy and protection against attacks.
1.2.“Approved Devices” means Non-UV Approved Devices and UV Approved Devices, as applicable. affiliate of Comcast” shall mean any entity that is not a Comcast Entity but that owns, directly or indirectly, any interest in any System.
1.3.“Approved Devices” shall mean each Approved IP Device” means any and Approved Set-Top Box, Connected TV, Connected Blu-ray Player, Personal Computer, Mobile Phone or Tablet that (i) satisfies the Non-UV Content Protection Requirements and (ii) enforces the Non-UV Usage Rules. collectively.
1.4.“Approved Operating System” means: (a) any one of Windows XP, Windows 7, Windows 8, Windows Phone, Mac OS, iOS, Android (where the implementation is marketed as “Android” and is compliant with the Android Compliance and Test Suites (CTS) and Compatibility Definition Document (CDD)), Symbian, RIM QNX; (b) versions of Linux controlled by the manufacturer of the device on which the version of Linux runs; (c) any other operating system agreed in writing with Studio; and (d) any successor to any of the foregoing.IP Device” shall mean (A) an IP-enabled device that (i) satisfies the content protection requirements set forth in Exhibit C attached hereto; and (ii) enforces the usage rules set forth in Exhibit D attached hereto or (B) a Portable Device that (i) satisfies the content protection requirements set forth in Exhibit C attached hereto; and (ii) enforces the usage rules set forth in Exhibit D attached hereto. For purposes of clarification and not of limitation, a set-top box that meets the above criteria may be an “Approved IP Device.”
1.5.“Approved Set-Top Box” means an addressable set-top box (including, without limitation, an equivalent built-in component (e.g., a built-in component that provides access directly to a digital television by means of a conditional access card or similar technology), but not a portable device or a mobile/cellular phone) authorized by a System.
1.6.“Approved Stream Protection Methods” has the meaning set forth in the LASP Agreement.
1.6.1.7. “Approved Transmission Means” shall mean (i) the encrypted delivery of audio-visual content by means of any closed system(s) via wireline (including without limitation, copper wire, fiber optic cable and/or closed system IP/DSL network infrastructure (including ADSL/ADSL 2+/FTTH technologies)) located solely within the Territory; and (ii) the encrypted delivery of audio-visual content via Streaming or Electronic Downloading over the global public network of interconnected networks that transmit data via Internet Protocol, whether transmitted over wireline, wireless or other means.
1.7.1.8. “Authentication Code” means the unique authentication code included with each UV-Enabled SKU which is redeemable for and allows access to the UV-enabled digital version of the Included Program represented on such UV-Enabled SKU.
1.8.1.9. “Authorized Version(s)” shall mean the 2Da version(s) of an Included Program made available by Studio to Comcast hereunder.
1.9.1.10. “Availability Date” shall mean the date on which an Included Program asset shall first be made available to Comcast for distribution on a DHE basis as determined by Studio, subject to the terms and conditions of this Agreement.
1.10.1.11. “CDD Physical Title” shall mean a DVD or a Blu-ray disc SKU released by Studio (or its affiliate) in the Territory.
1.11.1.12. “CFF Availability Date” has the meaning set forth for such term in the Phased Retailer Addendum.
1.12.“Comcast Group” shall mean, collectively, Comcast, each Comcast Entity, and any affiliate of Comcast.
1.13.“Comcast Services” shall mean, collectively, the websites, applications and/or other services that (i) deliver video content to end users, and (ii) are branded by Comcast (e.g., Xfinity).
1.14.1.13. “Comcast UV Agreements” shall mean, in each case as applied to Comcast by DECE, the DSP Agreement, Retail Service Provider Agreement, the Phased Retailer Addendum, the UltraViolet Locker Access Streaming Provider Agreement (the “LASP Agreement”) and any Other Ultraviolet License Agreement (as defined in the DSP Agreement) to which Comcast is a party from time to time (as applied by DECE to Comcast).
1.14.“Connected Blu-ray Player” shall mean 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.
1.15.“Connected TV” shall mean a television capable of receiving and displaying protected audiovisual content via a built-in IP connection.“Continued Access Period” shall mean separately with respect to each Customer Transaction, the period commencing on the date such Customer Transaction is executed and ending no later than the earlier of: (a) the ten (10)-year anniversary of the expiration of the Term; or (b) in the event Studio terminates this Agreement for an Event of Default in accordance with Section 29.1 below due to or in connection with an uncured breach by or on behalf of Comcast of Section 9, the effective date of such termination.
1.16.“Content Protection Requirements” shall mean the UV Content Protection Requirements and the Non-UV Content Protection Requirements, as applicable.
1.17.“Continued Access Period” shall mean the Non-UV Continued Access Period or the UV Continued Access Period, as the case may be.
1.18. “Current Series” shall have the meaning set forth for such term in Schedule A hereto.
1.19.“Current Series Prior Season” shall have the meaning set forth for such term in Schedule A hereto.
1.16.1.20. “Customer Transaction” means a Non-UV Customer Transaction and/or a UV Customer Transaction, as applicable.
1.17.1.21. “Customer” means a UV Customer and/or a Non-UV Customer, as applicable.
1.18.1.22. “DECE” shall mean Digital Entertainment Content Ecosystem LLC, a Delaware limited liability company, or any successor entity.
1.19.1.23. “DHE” shall mean the point-to-point electronic delivery of a single, audio-visual program from a remote source to a customer in response to such customer’s request, for which the customer pays a per-transaction fee (which fee is unaffected in any way by the purchase of other programs, products or services unless otherwise permitted hereunder, but not referring to any fee in the nature of an equipment rental or purchase fee) pursuant to a Customer Transaction whereby such customer is licensed to retain such program for personal viewing and playback for an indefinite time period. DHE may not be advertising supported and shall not include, without limitation, pay-per-view, video-on-demand rentals, manufacture-on-demand, physical home video sales or rentals (including without limitation standard DVD (digital versatile disk), successors and/or derivatives of the current standard DVD format, audio-only DVDs (e.g., DVD Audio, SACD, and Mini DVD), high definition DVDs (e.g., “Blu-Ray”), limited-play DVDs (e.g., Flexplay), ecopies, and UMD/PSP), in-store digital download, premium pay television, basic television, free broadcast television or Non-Theatrical exhibition.
1.20.1.24. “Digital Locker Functionality” shall mean the functionality that allows a Non-UV Customer’s Non-UV Included Programs to be managed by a “digital locker,” which enables such Non-UV Customer to access and obtain on demand at such Non-UV Customer’s discretion a Stream or an Electronic Download of an Included Program previously acquired pursuant to a valid Non-UV Customer Transaction from a “digital locker” to an Approved Device, for a period of time commencing with the Customer Transaction applicable to such Included Program and ending at the conclusion of the Continued Access Period.
1.21.1.25. “Download Fulfillment” has the meaning set forth in the Retail Service Provider Agreement.
1.22.1.26. “DSP Agreement” means that certain Download Service Provider Agreement, dated as of September 15, 2011, by and between DECE and Comcast Corporation, as such agreement may be modified or amended from time to time.
1.23.1.27. “Early DHE” means the release of an Included Program on a DHE basis in the Territory at least two (2) weeks prior to its release on physical media (e.g.,DVD or Blu-ray) in the Territory.
1.28.“Electronic Sell-Through” and “DHE” shall mean the distribution of content in a manner where an end user may, subject to the terms of an end user license agreement for such content, and further subject to such end user’s provision of consideration for such license, download and/or stream content for one-time and/or repeat viewing during an extended period of time (and not a specific and limited rental viewing period).
1.24.“Electronic Downloading” means the transmission of a digital file containing audio-visual content from a remote source, which file may be stored and the content thereon viewed on a “progressive download” basis and/or at a time subsequent to the time of its transmission to the viewer. “Electronic Downloading” and “Electronically Download” have correlative meanings.
1.25.1.29. “Eligible CDD Physical Title” shall mean each Feature Film embedded on a CDD Physical Title that is also an Included Program; provided, however, that any motion picture that, at the time of the exercise of the Disc-to-Digital Rights, already resides in a UV Customer’s Comcast digital locker shall not be considered an Eligible CDD Physical Title with respect to such UV Customer.
1.30.“Episode” shall have the meaning set forth for such term in Exhibit A hereto.
1.26.1.31. “Feature Film” means a New Release or Library Picture.
1.27.1.32. “Fulfillment” means, as applicable, Download Fulfillment and Streaming Fulfillment.
1.28.1.33. “High Definition” means any resolution that is 720p or higher, but in no event higher than 1080p.
1.29.1.34. “Included Program” shall mean UV Included Programs and Non-UV Included Programs, as applicable.
1.30.1.35. “Internet Protocol” or “IP” shall mean the protocol by which data is sent via a network using TCP/IP or other packet-switched technology(ies).
1.36.“IPTV” shall mean 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 in each case wholly owned and operated by Comcast as the case may be; 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 Comcast 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.
1.31.“IPTV” shall mean IP-based distribution of a system-based multichannel video programming service to the extent delivered only via a multichannel video programming distributor’s system(s) (including managed service flows) (e.g., U-Verse).
1.32.1.37. “LVR” for each Included Program means the earliest date on which such Included Program is first made available in the Territory to the general public for rental in the DVD or Blu-Ray format.
1.33.1.38. “Library Picture” shall have the meaning set forth for such term in Exhibit A hereto.
1.39.“Library Series” shall have the meaning set forth for such term in Exhibit A hereto.
1.40.“Licensed Client” has the meaning set forth in the Retail Service Provider Agreement.
1.41.“Licensed Services” shall mean, collectively, the websites located at the URL: ______and/or Playback Applications owned and managed by Comcast that (i) deliver video content to end users [wherein an end user’s receipt of such content is dependent upon such subscriber receiving such content via a System]; and (ii) are branded by Comcast (e.g., Xfinity). ” shall mean and be comprised only of the DHE program service that satisfies all of the following criteria: (a) is owned, operated and/or controlled by Comcast (and/or by an affiliate of Comcast or vendors on behalf of Comcast); (b) is known and primarily-branded (or co-branded) with a Comcast brand (e.g., “Xfinity,” “Comcast”) and (c) is available to Customers solely via the System-Based Service and one or more of the Comcast Services.
1.34.1.42. “Major Studios” means Lions Gate Entertainment, Paramount Pictures, Twentieth Century Fox, Universal Studios, The Walt Disney Company and Warner Bros., and any of their respective, wholly owned subsidiaries licensing DHE in the Territory.
1.35.1.43. “MMDS” shall mean the means of delivering video programming by direct broadcast to single family or multi-tenant dwellings by use of microwave frequencies, including only those frequencies classified by the Federal Communications Commission or its successor (“FCC”) as Local Multipoint Distribution Service, Multichannel Multipoint Distribution Service, Multipoint Distribution Service, Instructional Television Fixed Service and Operational Fixed Service.
1.44.“Mobile Phone” shall mean an individually addressed and addressable IP-enabled mobile hardware device of a user, generally receiving transmission of a program over a transmission system designed for mobile devices such as GSM, UMTS, LTE and IEEE 802.11 (“Wifi”) and designed primarily for the making and receiving of voice telephony calls. Mobile Phone shall not include a personal computer or tablet.
1.45.“New Release” shall have the meaning set forth for such term in Schedule A hereto.
1.36.1.46. “Non-Theatrical” means the exhibition of an audio-visual program by a service provided by a non-theatrical venue or facility (excluding private domestic residences) initiated in such non-theatrical venue or facility, provided that such venue or facility is not primarily engaged in the business of exhibiting motion pictures to the public, including: educational institutions (including dormitories); industrial, corporate, retail and commercial establishments; government and civic/community organizations; libraries; museums; parks, beaches, and campgrounds; prisons; churches, convents and monasteries; hospitals, nursing homes and hospices; retirement homes; orphanages; aeroplanesairplanes, cruise ships, ships, river boats, ferries, buses/coaches, and trains; marine and military installations; community and/or social clubs; hotels, motels, inns and lodges; holiday camps; film societies; and cemeteries.
1.47.“Non-UV Approved Devices” means Approved IP Devices and Approved Set-Top Boxes, collectively.
1.37.1.48. “Non-UV Customer” means each unique user that is authorized by Comcast to receive, decrypt and play a copy of a Non-UV Included Program from the Licensed Service, pursuant to a Non-UV Customer Transaction, in accordance with the terms and conditions hereof.
1.38.1.49. “Non-UV Customer Transaction” means each instance whereby a Non-UV Customer has acquired a Non-UV Included Program on a DHE basis and is authorized to receive an exhibition of such Non-UV Included Program as part offrom the Licensed Service.
1.50.“Non-UV Content Protection Requirements” means the Content Protection Requirements and Obligations set forth in Schedule B of this Agreement.
1.39.1.51. “Non-UV Included Program” means each New Release, Library Picture and Episode licensed in accordance with Section 5made available by Studio to Comcast for distribution hereunderby Comcast on a DHE basis in compliance with the Non-UV Usage Rules and the Non-UV Content Protection Requirements.
1.52.“Non-UV Usage Rules” means the content usage rules applicable to Non-UV Included Programs available on the Licensed Service, which are set forth in Exhibit E heretowithout UV rights.
1.40.1.53. “OVS” shall mean any open video system consisting of a set of transmission paths and associated signal generation, reception and control equipment, whether now existing or developed in the future, that is designed to provide video programming to multiple subscribers within a service area and that is certified by the FCC pursuant to 47 C.F.R. §76.1502 (as it may be amended or replaced).
1.54.“Owner Partner” means ______.
1.41.“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 shall not include any Portable Devices.
1.42.1.55. “Personal Use” shall mean the viewing of content by one or more persons on an Approved Device. Notwithstanding the foregoing, any viewing for which a premises access fee or other admission charge is imposed by a non-residential venue (other than any fee for accessing such non-residential venue for other general purposes), including such viewing that is on a monitor provided by such non-residential venue (or by a third party under any agreement or arrangement with such non-residential venue), shall not constitute a “Personal Use.”
1.56.“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 shall not include any Portable Devices. A Personal Computer must support 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 Studio.;” provided, that Studio acknowledges that the distribution technology used by Comcast in connection with the Licensed Service is not capable of controlling or detecting whether a Customer’s viewing is “private” or whether a user charges an access fee and, accordingly, any such use (unknown to and unauthorized by Comcast) by a Customer shall not be deemed a breach by Comcast hereunder.
1.43.1.57. “Phased Retailer Addendum” means the Phased Retailer Addendum to the Retail Service Provider Agreement entered into between Comcast and DECE, dated as of _____, as such addendum may be modified or amended from time to time.