PMP FOXTEL XBOX AGREEMENT - WikiLeaks
PMP FOXTEL XBOX AMENDMENT
XBOX AMENDMENT dated October [ ], 2010
[Note: Variations from the text suggested by Stephanie Alexander or by PMP Legal Committee members are highlighted in yellow.]BY AND BETWEEN Premium Movie Partnership, an Australian partnership consisting of Paramount Films of Australia Inc. ARBN 070 261 184, SPE Australian Ventures Pty Limited ACN 065 184 536, Universal Studios Pay Television Australia Inc. ARBN 067 665 383, Liberty Movies Australia Pty Ltd ACN 065 445 481; and Twentieth Century Fox Pay Television (Australia) Pty Limited ACN 004 004 960 (the "Programmer"), and FOXTEL Management Pty Limited ABN 65 068 671 938 for and on behalf of the FOXTEL Partnership between Sky Cable Pty Limited ACN 069 799 640 ("Sky") and Telstra Media Pty Limited ACN 069 279 027 ("Telstra Media") (the FOXTEL Partnership being referred to as "Distributor") and FOXTEL Cable Television Pty Limited ACN 069 008 797 (“Guarantor”); provided that references to the "parties" shall mean Programmer and Distributor, but not any of the partners of Programmer or any of their Related Persons.
Whereas, following negotiations about a proposal for Xboxes, Programmer desires to grant to Distributor the right to exhibit and carry the Xbox Services to Xbox Subscribers.
Therefore, in consideration of the mutual promises contained in this Xbox Amendment and subject to the terms and conditions of the Agreement, the parties agree as follows:
1. new DEFINED TERMS
Section 1 of the Specified Provisions is amended by deleting the definition "SHOWTIME" and by adding the following defined terms (to be inserted in alphabetical order):
"(a) "Authorized Xbox Device" means an Xbox, that:
(i) is capable of:
(A) receiving a digital media content file via Streaming delivery;
(B) storing the digital media content file in a temporary buffer that overwrites programming on the Services as new portions of the file are Streamed; and
(CB) playing the digital media content file using an encrypted license key received via direct license acquisition Internet delivery and granted by Distributor pursuant to its distribution rights hereunder; and
(ii) is registered to an authenticated Xbox Subscriber, in accordance with the requirements in [Note: NBC Uni suggest retaining Appendix E references by adding Appendix XX content to the end of Appendix E] Appendix E, and
(iii) meets the applicable security and content protection requirements and restrictions in this Agreement including thoseset forth in Appendix XX in the Xbox AmendmentE.
(b) [Note: Stephanie Alexander suggests deleting as defined in Appendix XX] "Media Player" means the software media player controlled by Distributor and through which the Xbox Services are delivered to the Authorized Xbox Device.
(cb) "SHOWTIME PREMIERE" means the Standard Definition Subscription Service known as "SHOWTIME PREMIERE" whose content is described in Section 1 of the General Provisions and Appendix B, and formerly known as "SHOWTIME"..
(dc) "Streaming" means transmission of signals such that:
(i) content is streamed only and not downloaded pursuant to any transaction;
(ii) the amount of content held in the volatile RAM buffer at any given time does not exceed 120 seconds;
(iii) the buffer is overwritten as new content is streamed; and
(iv) the buffer is cleared prior to termination of the streaming session.
(ed) "Xbox" means the Microsoft Xbox 360 game console device.
(fe) "Xbox Amendment" means this PMP FOXTEL Xbox Amendment dated on or about November 1as of [ ], 2010 by and between the parties to this Agreement.
(gf) "Xbox Basic Tier" means a programming tier or package of linear audio-visual channels offered by Internet Systems by Distributor, any Affiliate System or any Indirect System which is a first entry level tier or package for any programming tiers or packages of linear audio-visual channels offered by Internet Systems by Distributor, any Affiliate System or any Indirect System.
(hg) "Xbox SVOD Service" means the SVOD Service delivered by means of Internet Systems by Streaming to Authorized Xbox Devices described in Section 12AA of the Specified Provisions of this Agreement.
(ih) "Xbox Linear Services" means SHOWTIME PREMIERE, SHOWCASE and any other Linear Service added pursuant to sections 4(i) or 4(j) of the Specified Provisions of this Agreement.
(ji) "Xbox Services" means the Xbox Linear Services and the Xbox SVOD Service.
(kj) "Xbox Subscriber" means a Person (whether or not otherwise a Subscriber) who is in accordance with Appendix XX to thethis Xbox AmendmentAgreement directly or indirectly authorized by Distributor, any Affiliate System or any Indirect System to receive the Xbox Linear Services and the Xbox SVOD Service in a such Person's private residential dwelling (such as a private home, apartment, or a condominium)."
2. INTERPRETATION
In this Xbox Amendment, the following rules of interpretation apply unless the contrary intention appears:
(a) "Agreement" means the PMP FOXTEL Distribution Agreement by and between the parties to this Xbox Amendment dated February 25, 1998 as amended, including by amendments contained in the deed between the parties entitled "PMP Deed" and dated 23 December 2005, amendments with effect from March 31, 2006, further amendments with effect from December 1, 2007, further amendments with effect from October 1, 2009 and the amendments made by this Xbox Amendment.
(b) Except as otherwise expressly set forth in this Xbox Amendment, all capitalized terms herein shall have the meanings ascribed to them in the Agreement.
(c) All rules of interpretation in the Agreement including those in Section 1A of the Specified Provisions of the Agreement apply as if set out in this Xbox Amendment and as if referring to "this Xbox Amendment" instead of to "this Agreement".
3. AMENDMENT BY ADDING TO THE AGREEMENT
(a) The effective date of this Xbox Amendment is November 1, 2010.
(b) For avoidance of doubt, this Xbox Amendment does not amend the Agreement in relation to the Linear Services or the SVOD Services.
[Note: NBC Uni suggest deleting. Deletion is consistent with Liberty's prior suggestion](c) For avoidance of doubt, this Xbox Amendment applies the Agreement to the Xbox Services with amendments for the Xbox Linear Services or for the Xbox SVOD Service or for both of them.
(dc) In the event there is a conflict between this Xbox Amendment and the Agreement, the terms and conditions of this Xbox Amendment shall prevail.
(ed) Subject to the foregoing, the Agreement remains in full force and effect and is enforceable in accordance with its terms.
4. GRANT OF RIGHTS
Section 2 of the Specified Provisions is amended by adding after Section 2(a)(i) the following new Section 2(a)(iaa):
"(iaa) [Note; Fox and NBCU have reserved] an exclusive (subject to the terms and conditions of this Agreement [Note: NBCU asks whether these words from the PC SVOD grant are needed for Xbox] and subject to a non-exclusive grant to AUSTAR within the Territory on terms similar to this Section 2(a)(iaa)) license to exhibit and carry, and to that extent communicate within the Territory [(and non-exclusively within the AUSTAR area)] during the Term the Xbox Services in Standard Definition to Authorized Xbox Devices (and no other device) of Xbox Subscribers by Streaming by means of the Internet Systems, and Distributor acknowledges that this license does not include the right to exhibit and carry, and to that extent communicate the Xbox Services as part of Distributor's, each Affiliate System's and each Indirect System's PVR offering;"
5. TRANSFER PAYMENT
(a) Number of Subscribers: Section 3(c) of the Specified Provisions is amended by adding the following Section 3(c)(i)(C):
"(C) [Note: NBCU suggestion] the number of Subscribers shall for any Xbox Subscribers shall be counted as follows:
(I) in the case of an Xbox Subscriber with no Set Top Unit, one (1) Subscriber for each Authorized Xbox Device;
(II) in the case of an Xbox Subscriber with one or more Set Top Units, except as provided in (III) below, one (1) Subscriber plus one (1) Subscriber for each Authorized Xbox Device; and
(III) , except that for in the case of a Subscriber with two or more Set Top Units who then becomes an Xbox Subscriber (and for as long as that Xbox Subscriber continues to have two or more Set Top Units), the first Authorized Xbox Device of that Subscriber shall not be included in the number of Subscribers [Note: NBCU suggest wording consolidating this paragraph and former (b) below] provided that if Distributor, an Affiliate System or an Indirect System directly or indirectly makes, or permits a third party to make, any charge, whether characterized as a subscription, access, technical, per transaction or other fee that applies to the use of a first Authorized Xbox Device by an Xbox Subscriber with two or more Set Top Units referred to above, or if Distributor, an Affiliate Systems or an Indirect System directly or indirectly receives any benefit from the use of a first Authorized Xbox Device by an Xbox Subscriber with two or more Set Top Units referred to above, that first Authorized Xbox Device shall be counted as one (1) additional Subscriber; and"
(b) Adjustment to Number of Subscribers if Distributor charges for certain Authorized Xbox Devices: Section 3 of the Specified Provisions is amended by adding the following Section 3(j):
"(j) Adjustment to Number of Subscribers if Distributor charges for certain Authorized Xbox Devices: If Distributor, an Affiliate Systems or an Indirect System [Note: is this sufficient protection from "agnostic" delivery through some third party?]directly or indirectly makes, or permits a third party to make, any charge, whether characterized as a subscription, access, technical, per transaction or other fee that applies to the use of a first Authorized Xbox Device by an Xbox Subscriber with two or more Set Top Units referred to in Section 3(c)(i)(C)(II), that first Authorized Xbox Device shall be counted in the number of Subscribers."
6. CERTAIN DISTRIBUTION OBLIGATIONS
Section 4 of the Specified Provisions is amended:
(a) By adding a new Section 4(i):
"(i) [Note; NBCU has reserved] [Note: NBCU suggestion] Adding Standard Definition Xbox Linear Services: On giving no less than ninety (90) days prior written notice to Programmer, Distributor may request Programmer to include in the Xbox Linear Services any of the SD Services that are not included in the Xbox Linear Services, and Programmer shall comply with that request."
(b) By adding a new Section 4(j):
"(j) High Definition Xbox Services: If Distributor desires to include in the Xbox Linear Services any of the HD Services or to commence distribution of the Xbox SVOD Service in High Definition, Distributor may provide Programmer notice of that desire and Programmer may in its discretion approveapprove [PMP management responds to a comment from Fox], including as to terms and conditions of its approval, (or not approve) , Distributor's proposal."
(c) By adding a new Section 4(k):
"(k) If Distributor wishes to exploit in the Territory PC/Windows Media Center (Windows Vista and Windows 7 and any WMC extender technology), Distributor may provide Programmer notice of that intention and within thirty (30) days of that notice Programmer and Distributor shall enter into good faith negotiations with respect to Distributor's proposal for exploiting that technology."
7. TECHNICAL DISTRIBUTION SERVICES TO BE PROVIDEDCONTENT PROTECTION
[Note: NBCU suggestion] For the Xbox ServicesAppendix E to the Agreement is amended by adding the words in Appendix XX attached hereto.Appendix E to the Agreement is amended by adding the Appendix XX set out in the Schedule to this Xbox Amendment.
8. tiering, marketing and promotion
Section 7 of the Specified Provisions is amended by adding the following Section 7(i):
"(i) Xbox Services: Distributor, each Affiliate System and each Indirect System:
(A) must carry the Xbox Linear Services on the same programming tier unless Programmer gives its prior written consent;
(B) shall carry the Xbox Linear Services on a programming tier available directly off each Xbox Basic Tier; and
(C) Sections 7(c)(v) and (vi), 7(d), 7(e), 7(g) and 7(h) of the Specified Provisions apply separately to the Xbox Linear Services and to Other Movie Services, Subscription Services, TCM, and FOX Classics when respectively carried by Internet Systems to Xboxes by Distributor, an Affiliate System or an Indirect System."
9. Xbox SVOD service
The Specified Provisions are amended by inserting after Section 12 a new Section 12AA:
"12AA. XBOX SVOD SERVICE
a) Provision of SVOD Service by Internet Systems to Authorized Xbox Devices: Distributor shall from November 1, 2010 provide to Xbox Subscribers the Xbox SVOD Service as part of Distributor's SVOD offering delivered by Streaming by means of Internet Systems to Authorized Xbox Devices. [Note: NBCU suggestion to present Section 12AA as set out below] Distributor shall ensure that the Xbox SVOD Service will:
(i) only be provided as an enhancement to current Xbox Subscribers to the Xbox Linear Services for their personal non-commercial viewing only and will be offered to all such Xbox Subscribers;
(ii) [intentionally omitted]
(iii) will have its content programmed by Programmer as provided in Section 12AA(g);
(iv) not be subject directly or indirectly to any additional or increased retail charge by Distributor, an Affiliate System or Indirect System or by any third party that applies specifically to the Xbox SVOD Service or any of the other Services. For the avoidance of doubt, Programmer acknowledges that Xbox Subscribers may incur third party ISP costs for Internet delivery of the Xbox SVOD Service;
(v) not be available for Non-Residential Establishments or Commercial Establishments;
(vi) have no advertising, promotions or sponsorships unless inserted by Programmer in accordance with Section 12AA(g), (i) and/or (j);
(vii) [intentionally omitted]
(viii) only be provided where Distributor does not receive any third party income or consideration of any kind in relation to the Xbox SVOD Service;
(ix) comply with the requirements set out in Appendix E, Content Protection Requirements, to this Agreement;
(x) only be delivered subject to technological specifications or such technology being reviewed and approved by Programmer whose approval shall not be unreasonably withheld, delayed or conditioned. The specifications and technology used by Distributor at November 1, 2010 are deemed approved;
(xi) not permit Subscribers to transfer any programming to any other device (including from one Authorized Xbox Device to any other device, including any other Authorized Xbox Device) other than for the purpose of permitting a program to be viewed on a television monitor owned or controlled by the Xbox Subscriber and only in the Xbox Subscriber's home;
(xii) [intentionally omitted]
(xiii) not permit any use (including delivery to, storage on, transfer to, or viewing) on any hand-held portable device(s).
on the same terms (except for the amended references set out in Section 12AA(b)) as the PC SVOD Service under the following Sections:
i) Sections 12(a)(i) (where "Linear Services" is to be read as "Xbox Linear Services"), (ii), (iv) (replacing the words "to an additional or increased retail charge" with "directly or indirectly to any additional or increased retail charge by Distributor, an Affiliate System or Indirect System or by any third party"), (v), (vi), (viii), (x) (except that "October 1, 2009"
ii) [Note: PMP Management suggestion] Section 12(b) shall apply to the Xbox SVOD Service (subject to the amended references set out in Section [12AA(l)]) and replacing "October 1, 2010" with "November 1, 2011"];
iii) [intentionally omitted]
iv) [intentionally omitted]
v) Section 12(e) shall apply to the Xbox SVOD Service (subject to the amended references set out in Section [12AA(l)]) with the addition of "and/or advertising" to the end of 12(e)(vii) before the “; and”);
vi) [intentionally omitted]
b) Xbox SVOD Service:
i) Selection of Xbox SVOD content: From all or any of SHOWTIME PREMIERE, SHOWCASE, SHOWTIME ACTION, SHOWTIME COMEDY, SHOWTIME DRAMA, SHOWTIME FAMILY and SHOWTIME HORROR, Programmer shall (subject to Programmer having the rights necessary to exhibit and carry, and to that extent communicate, by Internet Systems to Authorized Xbox Devices a sufficient number of programs, which rights Programmer shall use reasonable endeavours to obtain) select Current Theatricals, Library Theatricals or Movie Equivalents including no less than seventy (70) Current Theatricals and/or Library Theatricals and/or MFTVs (unless otherwise agreed) for inclusion in the Xbox SVOD Service with the intention that the content shall be limited to programming that has been exhibited within Programmer's current license period for that programming on the Services (unless otherwise agreed with Distributor).
ii) Provision of Content: Section 12(g)(ii) shall apply to the Xbox SVOD Service (subject to the amended references set out in Section [12AA(l)]) (replacing the words "which as at October 1, 2009 are known as the FOXTEL Download Channel Kit" with the words "which as at November 1, 2010 are known as the FOXTEL [ ]")
iii) Programming model: The Programmer's proposed programming model as at November 1, 2010 envisages that each program will remain on the Xbox SVOD Service for twenty-eight (28) days with half of those programs being refreshed every fourteen (14) days.
iv) The following provisions of Section 12(g) shall also apply to the Xbox SVOD Service (subject to the amended references set out in Section [12AA(l)]: Section 12(g)(iv), (v), (vi), (vii), (viii), (ix), (x) (replacing the words "which as at October 1, 2009 are known as the FOXTEL Download Channel Kit" with the words "which as at November 1, 2010 are known as the FOXTEL [ ]" and with comparable Streaming references to the "Now Downloading" and "My Downloads" references), (xi) and (xii); and
v) Section 12(h) shall also apply to the Xbox SVOD Service (subject to the amended references set out in Section [12AA(l)].
vi) Section 12(i) shall also apply to the Xbox SVOD Service (subject to the amended references set out in Section [12AA(l)].
vii) Section 12(j) shall also apply to the Xbox SVOD Service (subject to the amended references set out in Section [12AA(l)].
viii) Section 12(k) shall also apply to the Xbox SVOD Service (subject to the amended references set out in Section [12AA(l)].
ix) Section 12(l) shall also apply to the Xbox SVOD Service (subject to the amended references set out in Section [12AA(l)].
c) Amended references: References in Section 12 are to be amended for this Section 12AA as follows:
i) references to the PC SVOD Service shall be read as references to the Xbox SVOD Service;
ii) references to Subscribers shall be read as references to Xbox Subscribers;
iii) references to delivery by means of Internet Systems by Pull to Authorized Personal Computers shall be read as references to delivery by means of Streaming by means of Internet Systems to Authorized Xbox Devices;
iv) references to "Branded Areas" shall be read as references to sections of the Xbox SVOD Service programmed in accordance with Section [12AA(g)];
v) references to "Branded Area Pages" shall be read as references to pages, screens or tiles (as the case may be) available through Authorized Xbox Devices;
vi) references to "on the FOXTEL Website" shall be read as references to "within the FOXTEL branded environment on the Xbox"; and
vii) references to "Distributor's Download Player" shall be read as references to "Distributor's media player".
viii) shall be replaced with "November 1, 2010"), (xi) and (xiii);
ix) Section 12(e) (adding to the end of 12(e)(vii) "and/or advertising");
x) Section 12(g)(ii) (omitting the words "which as at October 1, 2009 are known as the FOXTEL Download Channel Kit"), 12(g)(iv), (v), vi), (vii), (viii), (ix), (x) (with the omission of the words "which as at October 1, 2009 are known as the FOXTEL Download Channel Kit."), (xi) and (xii); and
xi) Sections 12(h), (i), (j), (k) and (l).
d) Amended references: References in Section 12 are to be amended for this Section 12AA as follows:
i) references to delivery by means of Internet Systems by Pull to Authorized Personal Computers shall be read as references to delivery by means of Streaming by means of Internet Systems to Authorized Xbox Devices;
ii) references to "Branded Areas" shall be read as references to sections of the Xbox SVOD Service programmed in accordance with Section 12AA(d);
iii) references to "Branded Area Pages" shall be read as references to web pages available through Authorized Xbox Devices; and
iv) references to "Distributor's Download Player" shall be read as references to "Distributor's Media Player".
e) Xbox SVOD Service: Distributor shall ensure that the Xbox SVOD Service will comply with the requirements set out in Appendix XX, Content Protection Requirements, to the Xbox Amendment.
f) Selection of Xbox SVOD content: From all or any of SHOWTIME PREMIERE, SHOWCASE, SHOWTIME ACTION, SHOWTIME COMEDY, SHOWTIME DRAMA and the content of the Branded Areas of the PC SVOD Service, Programmer shall (subject to Programmer having the rights necessary to exhibit and carry, and to that extent communicate, by Internet Systems to Authorized Xbox Devices a sufficient number of programs, which rights Programmer shall use reasonable endeavours to obtain) select Current Theatricals, Library Theatricals or Movie Equivalents including no less than [Note; NBCU has reserved] seventy (70) Current Theatricals or Library Theatricals (as the case may be) (unless otherwise agreed) for inclusion in the Xbox SVOD Service with the intention that the content shall be limited to programming that has been exhibited within Programmer's current license period for that programming on the Services (unless otherwise agreed with Distributor).
g) Programming model: The Programmer's proposed programming model as at November 1, 2010 envisages that each program will remain on the Xbox SVOD Service for twenty-eight (28) days with half of those programs being refreshed every fourteen (14) days.
(
(f) Unique feature:
10. xBOX SUBSCRIBER ADDRESSES
[Note 1: this provision could be included in Section 3 of the Specified provisions if that is more appropriate] [Note 2: See also numbered points 4 and 8 from the email to FOXTEL on 8 September 2010 submitting wording for consideration as modified by subsequent negotiation] The General Provisions are amended by adding to the end of Section 3 a new Section 3(f):
"(f) Distributor shall ensure that it, each Affiliate System and each Indirect System will carry the Xbox Services only to Xbox Subscribers residing within the Territory and that it, each Affiliate System and each Indirect System will not permit a person whose residential address is outside the Territory to become an Xbox Subscriber."
11. CONSEQUENTIAL AMENDMENTS FOR AUTHORIZED XBOX DEVICES
(a) Amendments to definitions in the Agreement: Section 1 of the Specified Provisions is amended:
(i) by amending the defined term "Services" in Section 1(fff) to read:
""Services" means the Linear Services, the SVOD Services and the Xbox Services."
(ii) by adding to the end of the defined term "Subscriber" in Section 1(mmm):
"; or
(iii) an Xbox Subscriber."
(iii) by amending the defined term "SVOD Services" in Section 1(ppp) to read:
""SVOD Services" means the PC SVOD Service, the STU SVOD Service and the Xbox SVOD Service."
(b) Certain distribution obligations: Section 4 of the Specified Provisions is amended:
(i) [Note: NBCU suggestion]by adding after Section 4(d) the following new Section 4(dd):
"(dd) Affiliate Systems, Indirect Systems and Authorized Xbox Devices: The Distributor shall not distribute the Xbox Services to subscribers of an Affiliate System or an Indirect System unless and until the Affiliate System Affiliation Agreement or Indirect System Affiliation Agreement (as applicable) obliges the Affiliate System or Indirect System (as applicable) to comply with all obligations relating to Authorized Xbox Devices and to Xboxes set out in this Agreement."
(iii) by adding after Section 4(e)(iii)(A) the following new Section 4(e)(iii)(AA):
"(AA) if Distributor separately groups Xbox services on its EPG, transmit the Xbox Services only as the Movie Services first in order appearing in Distributor's Xbox category in its EPG as a contiguous grouping of channels and no other Subscription Services shall be placed in its EPG between the Services;"
(iiiii) by adding after Section 4(e)(iii)(B) the following new Section 4(e)(iii)(BB):
"(BB) if Distributor does not separately group Xbox services on its EPG, transmit the Linear Services (including the Xbox Linear Services) only as the Movie Services first in order appearing on its service and only in a contiguous grouping of channels and no other Subscription Services shall be placed on a channel between the Services; and"
(c) Accounting statements: The General Provisions are amended by adding to the end of Section 5(a)(ii) immediately before "; and" the words:
"(including separately numbers of Xbox Subscribers in each case in Section 3(c)(i)(C) of the Specified Provisions)"
(d) Marketing, promotion and cross-promotion: Section 12 of the General Provisions is amended:
(i) by adding to the end of Section 12(g):
"For Xbox Services, such data may be broken down by each Xbox Service, the total number of Xbox Subscribers to any of the Xbox Services, and the total number of subscribers receiving the Xbox Basic Tier."
(ii) by adding to the end of Section 12(j):
"The tier in which the Xbox Linear Services are included shall in the same way (and unless otherwise agreed, for the same Open Periods) be opened and promoted to all subscribers to Distributor’s service who do not subscribe to the Services (or to the Xbox Services)."
(iii) by adding to the end of Section 12(k)(iv):
"This Section 12(k)(iv) applies in the same way to any cross-promotion of Movie Services on Distributor’s Internet System."
12. GUARANTOR
Guarantor agrees to be bound by this Xbox Amendment and by the Agreement as amended by this Xbox Amendment, and in particular by Section 20 of the Specified Provisions, and by Section 2(b) of the General Provisions, of the Agreement as they apply to the Agreement as amended by this Xbox Amendment.
13. GENERAL
(a) Certain provisions of the Agreement apply: Section 15 Confidentiality, Section 16 Relationship of the Parties, Paragraphs 17(c), (d), (f), (g), (h), (i) and (j) in Section 17 Miscellaneous Provisions, and Section 18 GST, in the General Provisions of the Agreement, apply to this Xbox Amendment as if set out in, and referring to, this Xbox Amendment.
(b) Liability for expenses: Each party must pay its own expenses incurred in negotiating, executing, stamping and registering this Xbox Amendment.
(c) Giving effect to this Xbox Amendment: Each party must do anything (including execute any deed), and must ensure that its employees and agents do anything (including execute any deed), that the other party may reasonably require to give full effect to Xbox Amendment.
(d) Counterparts: This Xbox Amendment may be executed in counterparts.
(e) Attorneys: Each person who executes this Xbox Amendment on behalf of a party under a power of attorney declares that he or she is not aware of any fact or circumstance that might affect his or her authority to do so under that power of attorney.
(f) Effect: This Xbox Amendment is executed as a deed, but the agreements recorded in this Xbox Amendment are intended to take effect when entered even if this Xbox Amendment does not take effect as a deed.
APPENDIX XX
CONTENT PROTECTION REQUIREMENTS
[Note – include an addition to Appendix E which applies only to Xbox Services to be supplied by Stephanie Alexander and to include Bob Kisor's wording set out in Steve Selover's email of September 5, 2010]. The following wording is based on the email to FOXTEL on September 8, 2010 submitting wording for consideration as modified by subsequent negotiation, and on the email from Steve Selover of Paramount dated September 5, 2010 with Bob Kisor's suggested wording] Appendix "E" to the Agreement is varied by adding the following provisions:
E. COPY CONTENT PROTECTION FOR AUTHORIZED XBOX DEVICES
(1) Licensor hereby authorizes the Xbox ("Authorized Xbox Device"), provided that Licensee complies with the following requirements. As a condition to Licensor’s authorization of the Authorized Xbox Device, If if the Authorized Xbox Device substantially changes from the date hereof in a manner that materially and adversely affects the security or content protection of the programming material available on the Xbox Services ("Licensed Pictures") (such a change, a "Material Change"), or if there is a Material Change in Licensee's Distributor's, an Affiliate System's or an Indirect System's implementation of Licensee's MediaDistributor's Media Player (as defined below) on the Authorized Xbox Device, then Licensor Programmer shall have the right to revoke its authorization of the Authorized Xbox Device upon 30 days written notice.
(2) All of the Xbox Services shall be delivered solely through Distributor's Media Player. “Distributor's Media Player” means the software media player controlled by Distributor, an Affiliate System or an Indirect System that implements the Security Solution. [Note: does the definition of "Media Player" in Section 1(b) above need to be harmonised with this definition?]Licensee's MediaDistributor's Media Player shall employ the Windows Media security and digital rights management solution ("Security Solution"), and as such, shall comply at all times with (a) the Microsoft DRM License Agreement and the then-current version of DRM’s Specifications and Compliance and Robustness Rules; and (b) any Special Conditions, Delivery Modes and Compliance Rules in the Microsoft DRM License Agreement.. Distributor, each Affiliate System and each Indirect SystemLicensee shall use commercially reasonable efforts to stay current with and implement the latest applicable version of the Security Solution for the Authorized Xbox Device and shall implement the commercially available security upgrades for the Security Solution within a commercially reasonable period of time after such upgrades first become commercially available. Licensee's MediaDistributor's Media Player shall be configured to comply with the requirements herein.
(3) All transmissions of the Licensed Pictures to the Authorized Xbox Device shall be via Licensee's MediaDistributor's Media Player and shall be encrypted and protected with the Security Solution, and shall be Streamed only and not downloaded to or copied onto the Authorized Xbox Device.
(4) Distributor, each Affiliate System and each Indirect SystemLicensee shall use industry-standard geolocation technologies and methodologies to ensure that any delivery to an Authorized Xbox Device is within the Territory. Distributor and its Affiliate Systems and Internet Indirect Systems shall comply with Appendix G to the Agreement..
(5) With respect to the Licensed Pictures, HDCP shall be applied to all digital outputs on the Authorized Xbox Device and CGMS-A Copy Never shall be applied to all analog outputs on the Authorized Xbox Device.
(6) Distributor, each Affiliate System and each Indirect SystemLicensee shall require of each Xbox Subscriber that Licensed Pictures delivered to an Authorized Xbox Device shall be viewable only on a television Locally Connected to that Authorized Xbox Device and shall implement technological measures to prevent Licensed Programs Pictures from being viewed outside of the local environment of that Authorized Xbox Device. "Locally Connected" means connected through (a) a physical tethered connection, or (b) a local wireless connection that is restricted to one local subnet (e.g. within a Subscriber's residence).
(7) Licensed Pictures shall not be delivered to an Authorized Xbox Device unless that Authorized Xbox Device is authenticated as a device that is registered to an account of the Xbox Subscriber with Distributor, an Affiliate System or an Indirect System for the Xbox Service ("Subscriber Account"). Each Authorized Xbox Device shall be registered to a Subscriber Account in such a manner that enforces the applicable usage restrictions, and in a cryptographically secure manner that identifies such Authorized Xbox Device with a unique device identifier provided by the Security Solution (i.e. the Authorized Xbox Device shall be identified by a unique hash of data based upon a unique hardware identifier of the device). Each Authorized Xbox Device shall be individualized for the purpose of issuing playback licenses and any playback license issued for a specific Authorized Xbox Device shall not be transferable or work on any other Authorized Xbox Device or any other device. Each DRM license key shall be encrypted and delivered separately via direct delivery to the applicable Authorized Xbox Device.
(8) Distributor, each Affiliate System and each Indirect SystemLicensee shall ensure compliance with the following usage rules. No Subscriber Account shall receive Licensed Pictures on and/or register more than the agreed number of Authorized Xbox Devices (with the agreed Transfer Payments made to Programmer in accordance with this Agreement). No Subscriber Account shall be allowed to deregister and substitute one Authorized Xbox Device unit for another Authorized Xbox Device unit more than one (1) time per month.
(9) There shall be no HD delivery or exhibition of Licensed Pictures on the Authorized Xbox Device, unless agreed in writing in advance by Programmer.
DRM
The WMDRM (e.g., WMF 11 SDK, WMRM 10.1.2 SDK, WMDRM 10, WMDRM-PD, WMDRM-ND), may be used by Distributor as an Approved DRM for delivery to certain Authorized Xbox Devices provided that Distributor shall: (i) comply at all times with (a) the Microsoft DRM License Agreement and the then-current version of DRM’s Specifications and Compliance and Robustness Rules; and (b) any Special Conditions, Delivery Modes and Compliance Rules in the Agreement; (ii) implement timely all security upgrades available from the DRM vendor within thirty (30) days of such upgrade being released by the vendor; (iii) use the highest security level settings available in the DRM and configure other DRM settings to support and comply with the terms and conditions defined in the Agreement; (iv) configure Output Protection as defined in Section B of Appendix E; and (v) ensure that DRM License with Keys are delivered separately via Direct License Delivery.
F ADDITIONAL RIGHTS AND REMEDIES:
1. Compliance Breaches: Distributor shall promptly notify Programmer of any Compliance Breach (as defined below), shall use commercially reasonable efforts to cure such breach and shall provide Programmer with (a) a detailed description of the breach, and (b) regular updates on the status of Distributor's efforts to cure such breach. In addition to any other rights and remedies of Programmer under the Agreement, at law or in equity, in the event that Distributor, any Affiliate System or any Indirect System fails to comply with any provision of this Appendix E, as reasonably determined by Programmer (or notified by Distributor) (each such breach, a "Compliance Breach") and it is Programmer's good faith reasonable belief that such breach will likely result in material harm to Programmer, Programmer shall have the right, exercisable upon written notice to Distributor, to immediately withdraw or suspend Distributor's exhibition rights and the exhibition rights of each Affiliate System and each Indirect System (as well as Distributor's right to contract with Affiliate Systems and Indirect Systems) with respect to any or all of the Licensed Pictures affected by such Compliance Breach if Distributor, such Affiliate System or such Indirect System (as the case may be) does not remedy the Compliance Breach to Programmer's reasonable satisfaction as promptly as practicable.
2. Security Breaches: Distributor shall promptly notify Programmer of any Security Breach (as defined below) and shall use commercially reasonable efforts to remedy and fix the flaw causing such Security Breach, and shall provide Programmer with (a) a detailed description of the breach, and (b) regular updates on the status of Distributor's efforts to remedy and fix such breach. In addition to any other rights and remedies of Programmer under the Agreement, at law or in equity, in the event of a Security Breach that, in Programmer’s good faith reasonable judgment, will likely result in material harm to Programmer, Programmer shall have the right, exercisable upon written notice to Distributor, to immediately withdraw or suspend Distributor's exhibition rights and the exhibition rights of each Affiliate System and each Indirect System (as well as Distributor's right to contract with Affiliate Systems and Indirect Systems) with respect to any or all of the Licensed Pictures affected by such Security Breach or to terminate this Agreement if Distributor, any Affiliate System or any Indirect System (as the case may be) does not remedy such Security Breach to Programmer's reasonable satisfaction as promptly as practicable but in no event later than thirty (30) days from discovery of the breach, in each case using all commercially available means. As used herein, "Security Breach" means circumvention of a signal security or content protection system by unauthorized third-party efforts which is likely to materially compromise the secure delivery or geofiltering of Licensed Pictures as part of the Xbox Services.
3. Remedy and Required Actions: In the event Programmer elects to withdraw or suspend Distributor's exhibition rights and the exhibition rights of each Affiliate System and each Indirect System (as well as Distributor's right to contract with Affiliate Systems and Indirect Systems) with respect to any or all of the Licensed Pictures pursuant to the foregoing provisions, (a) Distributor, each Affiliate System and each Indirect System shall immediately cease exhibiting such Licensed Pictures and Distributor shall immediately cease contracting with Affiliate Systems and Indirect Systems; and (b) Programmer's suspension and withdrawal rights shall continue until such time that the Compliance Breach or Security Breach has been remedied or fixed to Programmer's reasonable satisfaction.
EXECUTED as a deed
FOXTEL PARTNERSHIP ("Distributor") BY:
|EXECUTED by FOXTEL MANAGEMENT PTY LIMITED for and on behalf of| | |
|SKY CABLE PTY LIMITED and TELSTRA MEDIA PTY LIMITED: | | |
| | | |
|Signature of director | |Signature of director/secretary |
| | | |
|Name | |Name |
|EXECUTED by FOXTEL CABLE TELEVISION PTY LIMITED: | | |
| | | |
|Signature of director | |Signature of director/secretary |
| | | |
|Name | |Name |
PREMIUM MOVIE PARTNERSHIP ("Programmer") BY:
PARAMOUNT FILMS OF AUSTRALIA INC.
By: Harold Richardson
Its: President
|EXECUTED by SPE AUSTRALIAN VENTURES PTY LIMITED: | | |
| | | |
|Signature of director | |Signature of secretary |
| | | |
|Name: | |Eulick Shane Morrissey |
UNIVERSAL STUDIOS PAY TELEVISION AUSTRALIA, INC.
By:
Its:
|EXECUTED by LIBERTY MOVIES AUSTRALIA PTY LIMITED: | | |
| | | |
|Signature of director | |Signature of director |
| | | |
|Graham Edward Hollis | |Michael T Fries |
|EXECUTED by TWENTIETH CENTURY FOX PAY TELEVISION (AUSTRALIA) | | |
|PTY LIMITED: | | |
| | | |
|Signature of director | |Signature of director |
| | | |
|Richard Clive Samuels | |Name |
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