CONFIDENTIAL
COVER SHEET FOR DIGITAL VIDEO DOWNLOAD DISTRIBUTION AGREEMENT [UNITED STATES]
Between Apple Inc. and Sony Pictures Television Inc.
Apple Contract No. VS ______Please include Name, email address, phone number and fax number for each contact
Senior Management: Sean Carey, Senior EVP [email protected]
Operations: Michael Arrieta, EVP [email protected]
Technical: Joe Arancio, VP [email protected] Phone: 310.482.4972 Fax: 310.482.4585
Royalties: Drew Shearer, SVP, Finance [email protected]
Legal / Business Affairs: Sony Pictures Television Inc. c/o Sony Pictures Entertainment Inc. 10202 W. Washington Bl. Culver City, CA 90232 Attn: General Counsel Fax: (310) 244-0510
Sony Pictures Television Inc. c/o Sony Pictures Entertainment Inc. 10202 W. Washington Bl. Culver City, CA 90232
Sony Pictures Television Inc. 7 Apple Inc. (Movie DHE) (4.28.08) Attn: EVP, Legal Affairs Fax: (310) 244-2169
iTunes Store c/o Apple Inc. 1 Infinite Loop, M/S: 3-ITMS Cupertino, CA 95014 Senior Management: Royalties: Eddy Cue, VP, iTunes [email protected] [email protected] (512) 674-2456 (408) 974-3484 Legal/Business Affairs: Marketing & Promotions: Kevin Saul, Associate General Ben Dillon, iTunes Movies Marketing Counsel [email protected] [email protected] (408) 974-5732 (408) 974-8849 direct dial (408) 253-0186 fax Content Operations, Production & Design: Matt Railo, Senior Counsel Robert Kondrk, Director Design [email protected] and Production (408) 974-3504 direct dial [email protected] (408) 974-9105 fax (408) 974-6840 Matt Burrows, Senior Counsel Technical: [email protected] Brian Larson, (408) 974-1588 direct dial [email protected], (408) 974-9105 fax (408) 974-9016 Contract Administration: Lorrie Bossie, Contract Administrator [email protected] (408) 974-3675 direct dial (408) 974-9105 fax
Sony Pictures Television Inc. 2 Apple Inc. (Movie DHE) (4.28.08) CONFIDENTIAL
DIGITAL MOVIE DOWNLOAD DISTRIBUTION AGREEMENT
This Agreement (as hereinafter defined) is by and between Apple Inc. ("APPLE"), having its principal place of business at 1 Infinite Loop, Cupertino, California 95014, and Sony Pictures Television Inc. (“SPT”), having its principal place of business 10202 W. Washington Bl., Culver City, California 90232, and is entered into as of the date this Agreement set forth below and is effective once signed by both APPLE and SPT (the "Effective Date").
WHEREAS, APPLE desires to distribute downloads of certain Movies (as hereinafter defined) and related materials made available by SPT hereunder; and
WHEREAS, SPT is willing to allow the distribution of Movies on a Digital Home Entertainment basis, as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, APPLE and SPT (collectively the "Parties") hereby agree as follows:
1. Definitions .
All capitalized terms used herein and not otherwise defined in this Agreement shall have the following meanings:
(a) “Agreement” means this Agreement (d) “Availability Period” means the time and the exhibits expressly attached hereto period set by and provided in writing or in and made a part hereof. In the event of any the Content File (including, without conflict between the provisions set forth in limitation, in any metadata) by SPT during the main body of this Agreement and any which Movies provided by SPT are exhibit, the conflicting provisions set forth available to APPLE for distribution through in the applicable exhibit shall control. the Online Store, commencing on an initial availability date specified therein by SPT (b) "Artwork" means any artwork and ending on the date set therein by SPT, relating to SPT Content that SPT owns, unless earlier suspended and/or withdrawn controls or is authorized to distribute for use by SPT pursuant to Section 6(d) of this or exploitation and makes available to Apple Agreement. in accordance with this Agreement. (e) "Content File" means a (c) “Authorized Version” of a Movie digital file containing SPT Content, shall mean the version made available by Artwork (if any), parental advisory SPT to APPLE in SPT’s sole discretion, notices (if any), copyright notices (if subject to the terms and conditions hereof. any), and associated metadata that the Parties mutually agree upon in Sony Pictures Television Inc. 3 Apple Inc. (Movie DHE) (4.28.08) writing, or which SPT or its for playback, unless such device is designees delivers to APPLE acting as a Transfer Device. hereunder. (j) “Digital Delivery Home (f) "Content Usage Rules" Entertainment” or “DHE” shall mean that means the usage rules applicable to mode of home video distribution in which audio-visual works in the form of an electronic digital file embodying a Movies available on a DHE basis via program is delivered to a customer pursuant the Online Store that specify the to an authorized transaction whereby such terms under which a Movie may be customer is authorized to retain such used, as set forth in Exhibit A program for playback an unlimited number attached hereto and made a part of times. hereof by this reference, and which may be modified by APPLE, from (k) “DHE Provider” means any DHE time to time, subject to prior written provider in the Territory that distributes approval by SPT (which approval DHE content by way of the Internet. may be given, withheld or delayed in SPT’s sole discretion). (l) “Download” means the delivery of an encrypted download to a Customer’s (g) “Customer” shall mean a registered Transfer Device over the Internet using user of the Online Store authorized by technology currently known as Internet APPLE to receive, decrypt and play a Movie Protocol in exchange for the Customer Price from the Online Store in accordance with and the grant of right to use Movies set forth the terms and conditions hereof. herein. “Download” shall not include, without SPT’s prior written approval, any (h) “Customer Transaction” shall means of viral distribution or the delivery of mean each instance in which a SPT Content by means of “push download” Customer is authorized by APPLE to (download first initiated by APPLE rather receive, decrypt and play a copy of a than Customer). “Download” may include Movie from the Online Store. “pre-ordering” (download requested by the Customer prior to the start of the (i) "Device" means any digital Availability Period of a Movie) of an player device or cellular phone encrypted file by a Customer in anticipation (excluding use of the over-the-air of a Customer Transaction, provided that cellular network) employing the such file cannot be delivered, decrypted Security Solution that is capable of and/or otherwise viewed prior to (i) the start receiving audio-visual files from a of the Availability Period for such Movie Transfer Device through a direct and (ii) the completion of a Customer physical connection or nearby Transaction in respect thereof. wireless connection (e.g., solely within the user’s home or over a (m) "Format" means the digital single local-area network in format for audio and video content accordance with the requirements set set forth in Exhibit C attached hereto forth in Exhibit A), for playback of and made a part hereof by this such audio-visual files, but that does reference. not allow the transfer of such audio- visual files with the keys necessary (n) "Fulfillment Activities" Sony Pictures Television Inc. 4 Apple Inc. (Movie DHE) (4.28.08) means APPLE’s activities relating to (s) "Online Store" means the its distribution and delivery of electronic store which is currently Movies, Artwork, Clips, trailers or marketed as the “iTunes Store,” or as other items provided by SPT to may otherwise be uniformly and Customers pursuant to the terms and consistently branded by APPLE from conditions of this Agreement. time to time as the case may be, and wholly-owned, operated and (o) “Internet” shall mean the public, free controlled by APPLE. The Online to the consumer (other than a common Store shall not be supported by carrier/ISP access charge) network of advertising revenue if such revenue interconnected networks (including, without is directly attributable to SPT limitation, the so-called Internet, Internet2 Content without written consent and World Wide Web), each using from SPT. technology which is currently known as Internet Protocol (“IP”). Subject to the (t) “Permitted Devices” means Transfer foregoing, Internet shall not include any Devices and Devices. cellular network (except as a means to access the Internet) or private, closed, (t) “Personal Use” means the personal, intranet or private, closed distribution noncommercial, viewing of a Movie and network. shall not include non-theatrical exhibition or any other viewing or exhibition for which (p) “Licensed Language” for a Movie (or in a venue in which) an admission, shall mean its original language or, if its access or viewing fee is charged, or any original language is not English, the original public exhibition. language dubbed or subtitled in English. (u) "Security Solution" means (q) “Megahit Movie” shall mean any the APPLE proprietary content Movie that (i) prior to the start of its protection system, marketed as Availability Period has North American Box Fairplay, in effect as of the Effective Office Gross Receipts of at least U.S. Date, as modified and updated, from $50,000,000.00 adjusted downward for time to time, during the Term, inflation in the MPAA average ticket price intended to reasonably protect in the United States from the year of Movies distributed via the Online theatrical release; or (ii) has been nominated Store pursuant to this Agreement, for an Academy Award in a major category which content protection system (e.g., best actor, best actress, best supporting performs, at a minimum, the actor, best supporting actress, best director, operations and functions described in best picture, best original screenplay or best Exhibit H attached hereto and made adapted screenplay), or (iii) is otherwise a part hereof by this reference and designated as a Megahit by SPT. shall, at all times during the Term (i) be no less protective than, and the (r) “Movie” shall mean a full-length same as, the protection system used feature film or short film, regardless of what to protect any similar third party medium such film was first released, made audio-visual content from similar available by SPT to Apple for distribution third parties, on the Online Store, on a DHE basis in the Territory. and (ii) offer a level of protection not
Sony Pictures Television Inc. 5 Apple Inc. (Movie DHE) (4.28.08) less than the level of protection Movies are first available via the afforded by Fairplay applicable to Online Store (which shall occur not Movies available on a Digital Home later than May 1, 2008) (“Initial Entertainment (a/k/a digital “sell- Term”) and any extension or renewal through”) basis as of the Effective periods as are mutually agreed to in Date. APPLE may modify the writing by the Parties or as otherwise Security Solution, from time to time, permitted by this Agreement, unless subject to prior written approval by the Agreement is terminated earlier SPT (which SPT approval may be pursuant to the express terms hereof. given, unreasonably withheld, delayed or conditioned in SPT’s sole discretion before a modification to the Security Solution may be applied to SPT Content), except that approval may be given subsequently (x) "Territory" means the fifty to implementation by SPT in the case (50) states of the United States of of modifications intended to cure a America (U.S.) and the District of compromise to the Security Solution Columbia, and all U.S territories, (which approval shall not be U.S. possessions, U.S. protectorates unreasonably withheld, if such cure and Puerto Rico. meets the level of protection required (y) “Transfer Device” means an hereunder), and except that no individually addressed and addressable IP- approval shall be required in the enabled hardware device of a Customer, event that such modifications cause which implements the Content Usage Rules, Fairplay to be more restrictive than administered by the Security Solution, that the immediately prior version of is able to: (i) play Movies (via either analog Fairplay if such modifications do not or digital outputs); (ii) store Movies; (iii) alter the Content Usage Rules or the Transfer (as hereafter defined) Movies with level of content protection required their content rights keys to any Permitted in this Agreement. Device (as that term is defined in Exhibit (v) "SPT Content" means the audio-visual A); and (iv) is subject to the Content Usage files of Movies made available by SPT to Rules. APPLE for distribution pursuant to this (z) "Video" or "Movie" means a Agreement, as more particularly described copy of SPT Content in digital in Section 3(c) below, and any Artwork, format suitable for exploitation on Clips and other material furnished by SPT or the Online Store, in the Format and its designees hereunder. protected by the Security Solution, (w) "Term" means the period which APPLE has the right to commencing on the Effective Date distribute via the Online Store and continuing for a period of one pursuant to the terms and conditions (1) year from the date on which of this Agreement.
2. Authorization; License . Sony Pictures Television Inc. 6 Apple Inc. (Movie DHE) (4.28.08) (c) Platform . Pursuant to the licenses granted in this Section 2, APPLE shall have the non- exclusive right to offer the Movies on a Downloading basis over the Online Store via Internet delivery directly to Online Store Customers (up to the resolution specified in Exhibit C), for the Term and throughout the Territory. APPLE shall not distribute the Movies on any basis other than directly to Customers of the Online Store. APPLE shall not syndicate the Online Store or any rights granted under this Section 2 hereof. SPT acknowledges that APPLE may use non-branded independent contractors, such as, by way of example, Akamai, to deliver its services, subject to APPLE’S compliance with the terms of Section 18(b), and such use shall not be deemed a breach hereof. Accordingly, subject to APPLE’S compliance with the terms and conditions of this Agreement, SPT hereby grants to APPLE, and APPLE hereby accepts a non-exclusive non-transferable, non-sublicensable license to:
i. reproduce, store, and Format (as defined in Exhibit C) and encrypt SPT Content Delivered (as hereinafter defined) by SPT or its designees into Movies for use and exploitation solely as contemplated under and in accordance with this Agreement;
ii. subject to Exhibit E attached hereto and made a part hereof by this reference, perform, display, exhibit and make available, on an Internet streaming basis, clips of SPT Content approved by SPT ("Clips") without charge to registered users of the Online Store in order to promote the availability of Movies on the Online Store, which Clips shall be provided by SPT;
iii. promote, distribute, display, perform, and electronically fulfill and deliver the Authorized Version of Movies in the Licensed Language, and associated metadata, to Customers located in the Territory solely in the medium of Digital Delivery Home Entertainment via the Online Store for Personal Use on Transfer Devices and Devices, only during the Availability Periods for such Movies, pursuant in each instance to a Customer Transaction and, subject at all times to the Content Usage Rules, Content Protection requirements and Terms of Service;
iv. display and electronically fulfill and deliver Artwork, provided or approved by SPT or its designees hereunder, for Personal Use solely in conjunction with the applicable Downloaded Movie.
APPLE is not authorized to use SPT Content in any manner or form not expressly authorized herein; provided that APPLE may modify metadata as APPLE deems reasonably necessary in order to correct errors or to append sub-genres or like information, upon written notice to SPT, which may be by email; provided, further, that any inadvertent failure to provide such notice shall not be deemed a breach hereof. Unless expressly agreed upon by SPT in writing, the rights granted herein do not include the right to distribute Movies in high-definition, up-converted or analogous format. Nothing in this Agreement shall be construed to prevent SPT from marketing, selling or distributing SPT Content by any means. SPT expressly reserves all rights in and to the SPT Content, subject to the terms and conditions hereof. No right, title or Sony Pictures Television Inc. 7 Apple Inc. (Movie DHE) (4.28.08) interest in any Downloaded Movie shall be deemed transferred to Customers of the Online Store as a result of any downloading or copying, or otherwise, other than the grant of rights to use the Movies for Personal Use in accordance with the terms of this Agreement and the Terms of Service. APPLE shall not pledge, mortgage or otherwise encumber any part of the SPT Content.
(d) Availability; Distribution Commitment . SPT shall make available, and APPLE shall license from SPT hereunder the right to distribute (and all rights appurtenant thereto, as expressly granted herein), all Movies that are available for distribution on a DHE basis in the Territory; provided that SPT agrees to make available to APPLE for distribution hereunder each Movie first released on DVD during the Term as such titles may be cleared for delivery via the distribution means authorized pursuant to this Agreement. The Availability Period for each Movie shall start no later than the date on which SPT makes such Movie generally available for DHE distribution in the Territory; provided, however, that the start of the Availability Period for each Movie first released on DVD during the Term that meets the criteria specified above shall be no later than the date on which SPT or its affiliate makes such Movie available on a non-exclusive basis for sale to consumers on DVD (or other optical disc format) in the Territory. SPT may elect, in its sole discretion, to make any Movie, on a one-off basis, available for exclusive distribution through a single distributor in the Territory; provided that the foregoing shall not be used to frustrate the purposes of this Agreement.
(e) APPLE shall not edit or modify, the SPT Content without SPT's prior approval, except as expressly set forth herein to the contrary. All uses by APPLE of SPT’s names, logos, trademarks and Artwork shall be in accordance and conformity with SPT’s written specifications and guidelines for the use of such materials, as provided to APPLE in writing concurrent with the execution hereof and/or from time-to-time during the Term, when provided or made available to APPLE either concurrently with the delivery of subsequent SPT Content or prospectively (but which shall only be binding prospectively upon APPLE, a commercially reasonable time thereafter).
(f) APPLE shall not assign, transfer, syndicate or sublicense any of its rights under this Section 2 hereof or appoint or engage agents, subagents or other third parties to exercise any of such rights, except for the limited right to employ or hire contractors to perform certain of its duties hereunder in accordance with Section 18(b) hereof.
(g) APPLE and SPT shall brand and market the availability of the Movies on the Online Store distributed hereunder as provided in Exhibit F, attached hereto and made a part hereof by this reference.
(h) Non-Exclusivity . APPLE’s rights hereunder are non-exclusive. Nothing in this Agreement shall restrict SPT’s ability to offer the Movies on any platform or in any media or market during the Term.
(i) Functionality . The Online Store shall have the functionality described on Exhibit E.
(j) Advertising and Promotion . The Parties agree to the advertising and promotion provisions described in Exhibit G, attached hereto and made a part hereof by this Sony Pictures Television Inc. 8 Apple Inc. (Movie DHE) (4.28.08) reference.
(k) APPLE shall comply with the content protection obligations set forth in Section 12.
(l) APPLE shall be responsible for the final encoding of Content Files pursuant to the specifications set forth in Exhibit C at its cost (i.e., after APPLE’s receipt of encodes from SPT). SPT reserves the right to review a sampling of the encodes of the Content Files and/or Movies to determine APPLE’s compliance with this Agreement.
(m) APPLE shall make each Movie supplied by SPT hereunder, in accordance with the terms and conditions hereof, continuously available on the Online Store at all times during its Availability Period, subject to the terms and conditions of Section 2(n), 12, 14, 18(l) , or as otherwise expressly provided herein.
(l) APPLE agrees that (i) no Adult Movie shall be distributed, exhibited, promoted or listed on the same or previous screen (within the Movie Store portion of the Online Store) as a screen on the Online Store on which a Movie is promoted or listed, and (ii) no Adult Movie will be classified within the same genre/category as any Movie. As used herein, “Adult Movie” shall mean any motion picture or related promotional content that has either been rated NC-17 (or successor rating, or if unrated would likely have received an NC-17 rating, other than a title released by Sony Pictures, Universal Studios, Twentieth Century Fox, The Walt Disney Company, , Paramount Pictures, Lions Gate or Warner Bros., or their subsidiaries (each, a “Major Studio”), or a title otherwise deemed not to be an Adult Movie by SPT in its sole discretion) or X or is unrated and would have likely received an X if it had been submitted to the MPAA for rating.
(m) Notwithstanding anything contained herein to the contrary, APPLE shall have the right to remove, on temporary or permanent basis, certain Movies from the Online Store (i) if such removal is made pursuant to the Digital Millennium Copyright Act, as amended from time to time (“DMCA”), pursuant to a notification in accordance with 17 U.S.C. § 512 or other applicable sections of the DMCA; provided that SPT shall have the right to submit a counter-notification in accordance with 17 U.S.C. §512(g) or other applicable provisions and Apple may, without limiting SPT’s rights hereunder or in law, continue distributing such Movie(s) promptly after receiving such counter-notification; or (ii) if a claim, demand or suit is made or brought against Apple concerning such Movie(s). In addition, Apple shall have the right to remove individual Movies from the Online Store if Apple reasonably determines that such Movie(s) do not meet Apple’s technical quality requirements, provided that SPT shall have the opportunity to submit a replacement Movie and Apple shall promptly make such replacement Movie available via the Online Store. In the event a particular Movie, in Apple’s reasonable discretion, causes, or is likely to cause, material harm to Apple’s reputation or sales on the Online Store, then APPLE shall advise SPT of same in writing. In such event, SPT shall provide APPLE with a meaningful opportunity to request that such Movie be removed or replaced.
(n) SPT shall deliver all SPT Content to APPLE in accordance with the delivery process specified in Exhibit C.
Sony Pictures Television Inc. 9 Apple Inc. (Movie DHE) (4.28.08) 3. Certain SPT Obligations .
(n) SPT shall, from its location in Culver City, California electronically deliver to APPLE at its location in Cupertino, California, in a timely manner, as set forth herein, during the Term, at SPT's sole expense, Content Files in the Delivery Format and via the Delivery Method set forth in Exhibit C. Provided that the Content Files are delivered to APPLE in accordance with the terms of Exhibit C and all other terms of this Agreement, then the Content Files shall be deemed delivered hereunder (“Delivered”).
(o) Subject to the terms of Exhibit D, SPT, or a third party designated by SPT in writing and approved by APPLE, shall commence Delivery of Content Files as soon as reasonably possible after the Effective Date. Thereafter, SPT shall notify APPLE in writing (each, an “Availability Notice”) of additional Movies to be made available by SPT to APPLE for distribution hereunder. APPLE shall have the obligation to distribute each such additional Movie at all times during the Term, subject to APPLE’s limited right to remove Movies in accordance with the express terms and conditions hereof and provided such Movie has not been withdrawn by SPT pursuant to the terms of Section 6(d).
(p) The initial list of SPT Content that SPT shall make available to APPLE, for use hereunder, is set forth in Exhibit D.
4. Rights Clearances and Royalties .
As between SPT and Apple, SPT shall be solely responsible for paying: (i) all applicable royalties or other payments to artists, talent, producers, directors and other third parties related to the use or other exploitation of SPT Content hereunder; (ii) all applicable mechanical (i.e., reproduction and distribution) and synchronization royalties or payments payable to composers, lyricists, authors and publishers of compositions embodied in SPT Content related to the use or other exploitation of SPT Content hereunder; (iii) all applicable payments that may be required under any collective bargaining agreements and guilds applicable to SPT or third parties; and (iv) any other royalties, fees and/or sums payable with respect to SPT Content, Artwork, metadata and other materials provided by SPT or its designees and/or APPLE's use or exploitation thereof hereunder including, but not limited to, participation and residual fees and synchronization fees. As between SPT and APPLE, APPLE shall be, responsible for any third party public performance rights payments payable to ASCAP, BMI, SESAC or similar organization having jurisdiction in the Territory (to the extent such rights may be implicated, if at all, hereunder) for musical compositions and sound recordings exploited hereunder.
Sony Pictures Television Inc. 10 Apple Inc. (Movie DHE) (4.28.08) 5. Distributor Price .
For each Customer Transaction, APPLE shall pay SPT the distributor price as set forth in Exhibit B attached hereto and made a part hereof by this reference. SPT shall not increase such distributor price during the Term. APPLE shall provide notice (which may be made by email) at least five business (5) days prior to an increase in the retail price of a Movie. For the avoidance of doubt, APPLE reserves the right to determine the retail price hereunder in its discretion.
6. Certain APPLE Obligations .
(q) APPLE shall condition the distribution and delivery of Movies on an end user's acknowledgement of and agreement (as determined by APPLE) to the terms of service for the use of such Movies as set forth on the Online Store ("Terms of Service"), a sample copy of which is attached hereto as Exhibit K and made a part hereof by this reference. Such Terms of Service, to the fullest extent of applicable law, shall be intended to be an enforceable agreement between APPLE and such end user, shall be no less restrictive than the Content Usage Rules, and shall state that the distribution of Movies does not transfer to such end user any commercial or promotional use rights in the Movies or any intellectual property rights in the content embodied in the Movies. APPLE shall require that Customer’s use of the Movie(s) must be in accordance with the Content Usage Rules, and that except for the rights explicitly granted to Customer, all rights in the Movie(s) are reserved by Apple and/or SPT. APPLE shall notify SPT in writing of any substantive changes to the Terms of Service and SPT shall have the right to terminate this Agreement upon written notice to APPLE if such changes have a material, negative impact on SPT’s rights or interests under the Terms of Service.
(r) APPLE shall use the Security Solution to administer compliance by end users with the Content Usage Rules and Terms of Service and shall take all actions, as deemed appropriate by APPLE, in its sole discretion, against any end user who violates the Terms of Service, which may include, without limitation, terminating or restricting such end user's right to make purchases through the Online Store and/or initiating legal action. APPLE shall notify SPT in writing of any violations by Customers of the Terms of Service of which APPLE becomes aware and the actions taken by APPLE against such end user. Notwithstanding the foregoing, (i) SPT reserves all of its rights and remedies under law and equity against any users and any other third parties who infringe SPT’s rights with respect to the SPT Content; and (ii) SPT shall promptly notify APPLE in writing of any intent by SPT to enforce any of its rights against any Online Store end users or other third parties with respect to SPT Content.
(s) Subject to Section 4 hereof, APPLE shall be responsible for all costs associated with APPLE's Fulfillment Activities.
(t) If during the Term: (i) SPT believes that it does not have, or no longer has, or there is actual or threatened litigation regarding, the rights necessary to authorize APPLE to distribute a particular Movie as provided herein; (ii) SPT believes that APPLE’s continued distribution of a particular Movie will violate the terms of any of SPT’s Sony Pictures Television Inc. 11 Apple Inc. (Movie DHE) (4.28.08) agreements with any applicable copyright owner, artist, composer, producer, director, publisher, or similar third party rights holder; or (iii) SPT believes that APPLE’s continued distribution of a particular Movie may adversely affect SPT’s material relations with any applicable copyright owner, artist, composer, producer, director, publisher, or similar third party rights holder (but not distributor), then SPT shall have the right to withdraw, upon written notice to APPLE’s designated representative, authorization for the distribution of such Movie hereunder. Following such withdrawal, APPLE shall cease to offer such Movie for distribution within three (3) business days after APPLE’s receipt of such notice of withdrawal. In addition, if SPT believes that APPLE’s continued distribution of Movies in a manner that does not comply with revised instructions given by SPT to APPLE in accordance with Section 7(c) (with respect to APPLE’s display of MPAA rating information and/or the FBI anti-piracy warning) will violate the material terms of any written agreement or other material requirement imposed on SPT by the MPAA or any governmental body administering the use of such information or warnings, as applicable, then SPT shall have the right to withdraw, upon written notice to APPLE's designated representative, authorization for the distribution of such Movie hereunder; provided that SPT (y) affords APPLE five (5) business days, after receipt of notice thereof, in which to modify its display of such rating information or warning, to the reasonable satisfaction of SPT, and (z) withdraws authorization for distribution of such Movies by any other DHE Provider(s) that had implemented the same or substantially the same method of displaying such information or warning as APPLE and such other DHE Provider(s) fails to comply with SPT’s revised instructions with respect thereto. Following any five (5) business day period, if APPLE fails to satisfy such condition (concerning modification or consent), APPLE shall cease to offer such Movie for distribution. APPLE shall not be entitled to any right or remedy as a result of any withdrawal pursuant to this subsection (d).
(e) Notwithstanding anything to the contrary in this Agreement, APPLE shall have the right to withdraw from the Online Store any Movie, on a case-by-case basis, if deemed necessary in APPLE’s good faith business discretion, solely in response to bona fide, documented customer or public relations issues which APPLE has tried in good faith to resolve, and only if APPLE believes in good faith that continuing to distribute such Movie(s) would damage its reputation or goodwill. In no event shall APPLE use this provision to frustrate the purposes of this Agreement.
7. Parental Advisory; Anti-Piracy Warning .
(u) MPAA Rating . If SPT provides APPLE, in writing, with the MPAA rating information about a particular Movie in the Content File, then APPLE shall display such MPAA rating information for each Movie in the following manner: (i) the MPAA rating, as well as the description of the reasons behind the rating (e.g., “Rated PG-13 for some violence”), must be displayed in full on the main product page for such Movie within the Online Store alongside other basic information for such Movie such as, by way of example, run time, release date and copyright notice, and such information must be displayed before a Customer Transaction is initiated; and (ii) once a Customer Transaction has been completed, each time the Movie is listed in a menu display of the
Sony Pictures Television Inc. 12 Apple Inc. (Movie DHE) (4.28.08) Customer’s movie library within the iTunes client software, the MPAA rating icon must be displayed next to the Movie title. In addition, the iTunes client software must implement parental controls that allow a Customer with password-protected access to an Online Store account to restrict users of that Online Store account on that Transfer Device from Downloading or previewing Movies that do not carry a specific MPAA rating (e.g., restrict access to Movies that carry any rating above “G”).
(v) Anti-Piracy Warning . With respect to all Movies distributed by APPLE pursuant to this Agreement, APPLE shall display the following anti-piracy warning in the file attributes, “Properties” or similar summary information screen for each Movie, which information may be accessed by Consumers by accessing the “About” or “Options” information for each Downloaded Movie: “FBI ANTI-PIRACY WARNING: UNAUTHORIZED COPYING IS PUNISHABLE UNDER FEDERAL LAW.” In addition, if at any time during the Term (i) APPLE implements functionality as part of the Online Store that enables the inclusion of an FBI warning or similar anti-piracy message that is played back or otherwise displayed before the start of a movie, and/or (ii) distributes motion pictures on a DHE basis that include an FBI warning or similar-anti piracy message that plays back before the start of a movie, then SPT shall have the option of including an FBI Warning or other anti-piracy message in the same manner with respect to the Movies distributed by APPLE hereunder, provided that the content and design of such message shall determined by SPT.
(w) Updates . If, at any time during the Term, (i) the MPAA issues updated rules or otherwise requires the display of MPAA rating information for digitally-distributed motion pictures in a manner different than the requirements set forth in Section 7(a); and/or (ii) any U.S. governmental body with authority over the implementation of the so-called “FBI Anti- Piracy Warning,” requires that such warning be implemented in a manner different from the manner set forth in Section 7(b) , then SPT shall provide written notice to APPLE of such new requirements and APPLE shall comply with those requirements as a condition of continuing to distribute Movies pursuant to this Agreement. In the event APPLE does not promptly comply with updated instructions issued by SPT pursuant to this Section 7(c), SPT shall have the right, but not the obligation, to withdraw the affected Movie(s) in accordance with Section 6(d).
8. Payment and Reports . See Exhibit B
9. Names, Voices and Likenesses . Subject to Sections 2(d) and 2(f) above, and in accordance with the terms, conditions and restrictions contained in Exhibit J, APPLE shall have the right, but not the obligation, to use and otherwise exploit the names, voices and, subject to prior approval by SPT, the authorized likenesses of and biographical material concerning the director(s), producer(s) or other key personnel involved in the development and/or production of the SPT Content (each a "Talent"), and the title(s) of SPT Content, in SPT Content and, in any marketing, advertising and promotional materials used in connection with the distribution, promotion and/or advertising of the applicable Movie hereunder. By way of example, APPLE shall have the right to use a Talent name in an informational fashion, such as textual displays or other informational passages, in order to identify and represent authorship, production credits, and Sony Pictures Television Inc. 13 Apple Inc. (Movie DHE) (4.28.08) performances or services of the applicable Talent in connection with the authorized exploitation of applicable Movies. Written approval of SPT shall be required if any Talent's name or likeness is used in a manner other than as set forth above. Talent’s name or likeness shall not be used as an endorsement of APPLE, the Online Store, or other products. APPLE’s use of Talent name, voice and/or likeness pursuant to this Section 9 shall not be deemed an endorsement of APPLE, the Online Store or other products or services.
10. Copyright Notices; Ownership .
(x) SPT may provide a copyright notice for applicable SPT Content in the Content File. In such event, APPLE shall include such copyright notice in a manner that can be viewed prior to completion of a Customer Transaction with respect to such Movie and any time the item bearing such copyright notice is displayed or reproduced; provided that any inadvertent failure to do so shall not be deemed a breach hereof; further provided that APPLE takes commercially reasonable steps thereafter to cure any such breach upon receipt of notice thereof. The length of any such notice shall not exceed APPLE’s then- current technical limitations. APPLE shall not knowingly and willfully defeat, impair or alter any copyright notice or watermark in SPT Content distributed hereunder, including any such notice or watermark made a part of Artwork or materials Delivered by SPT or its designees hereunder.
(y) As between the Parties, all of SPT’s right, title and interest in and to: (i) the SPT Content; (ii) the Movies, excluding the Security Solution; (iii) the Clips; (iv) all copyrights and equivalent rights embodied in the Movies and Clips; and (v) all materials made available by SPT, shall remain the property of SPT. Notwithstanding the foregoing, in no event shall APPLE have any lesser rights than it would have as a member of the public with respect to the so-called fair use doctrine or the First Amendment of the U.S. Constitution. Upon written request, APPLE shall lend a copy of each Movie to SPT (in the Format(s) created by APPLE pursuant to this Agreement) solely for the purpose of securing copyright registration of the Movie (and for no other purpose). Any wrapping of SPT Content in the Security Solution shall not be deemed to transfer any right, title or interest in the Security Solution to SPT.
11. Press Release .
Without limiting the provisions of Section 16 hereof, neither SPT nor APPLE shall make or issue any press release or, prior to the initial announcement thereof, public statement or press release regarding this Agreement or its subject matter without the prior written approval of the other Party.
12. Content Protection .
Sony Pictures Television Inc. 14 Apple Inc. (Movie DHE) (4.28.08) (z) APPLE shall use the Security Solution having the goal to prevent theft, pirating and unauthorized exhibition (including, without limitation, exhibition to non- Customers and exhibition outside the Territory), unauthorized copying or duplication of any video reproduction or compressed digitized copy of any Movie, which shall at all times during the Term (i) be no less protective and robust than, and the same as, the protection system used to protect any third party television shows or feature films distributed on the Online Store in the Territory, and (ii) offer a level of protection not less than the level of protection afforded by Fairplay applicable to DHE movie content in the Territory as of the Effective Date. SPT acknowledges that certain of the content protection measures it is requiring as a condition of making Movies available hereunder will be implemented by APPLE using the digital rights management features of the Security Solution.
(aa) If (i) a condition actually results or may, within a reasonable likelihood, result in the unauthorized availability of any Movie on, or means to transfer any Movie to, devices that are not Transfer Devices or Devices, or the use of the Movies other than in accordance with the Content Usage Rules set forth in Exhibit A; (ii) the Security Solution, including, but not limited to, the keys that form components thereof, is compromised by a readily accessible hack such that a condition actually results or, in SPT's reasonable judgment, may within a reasonable likelihood, result in either Movies being unencrypted and are being made available without restriction or the keys have been cloned and are being made available such that, in either case, a material number of Movies are being or, within a reasonable likelihood, will be used in violation of the Content Usage Rules which in the good faith judgment of SPT result in actual or threatened harm to SPT (each, a “Security Breach”), or (iii) in SPT's reasonable judgment, a Security Breach is about to happen within a reasonable certainty or has happened, then, in the case of (i) and (ii) above, APPLE shall promptly notify SPT of such Security Breach (which obligation to notify shall include notification of material hacks regardless of whether they have become widely available), and in the case of either (i), (ii) or (iii) above, SPT may suspend the delivery of new SPT Content to APPLE for distribution on the Online Store, and APPLE shall use commercially reasonable efforts, taking into account the severity of the Security Breach, to promptly remedy the Security Breach and, at a minimum, restore the level of content protection afforded by the Security Solution or other content protection system implemented by APPLE, if any, to the level existing prior to such compromise of the Security Solution (a "Cure") without delay, and in no event longer than fifteen days (the "Cure Period") and shall promptly notify SPT once the Security Breach is Cured. If the Security Breach is not Cured during the Cure Period, Apple upon SPT's request shall immediately suspend the distribution of all Movies until the Security Breach is Cured. Additionally, if in the good faith judgment of SPT, the Security Breach has not been Cured within thirty (30) days from notice of the Security Breach (including within that 30 days a meet and confer period during which senior management of both parties shall meet to discuss the Security Breach), SPT shall have the right to terminate this Agreement upon written notice to APPLE. The foregoing shall constitute APPLE's sole Sony Pictures Television Inc. 15 Apple Inc. (Movie DHE) (4.28.08) obligation and SPT's sole remedy from APPLE in the event of such a Security Breach, described in this Section 12(b) hereof.
(bb) Notwithstanding anything to the contrary, in the event that APPLE receives notice of a Security Breach of the servers or network components that store SPT Content on the Online Store such that unauthorized access to SPT Content becomes available via the Online Store, then APPLE will disable the ability to purchase, and offer the download of, Movies embodying SPT Content via the Online Store within twenty-four (24) hours following APPLE'S receipt of notice thereof, which shall be APPLE's sole obligation and, except as provided in Sections 12(b) and 12(c) hereof, SPT's sole remedy from APPLE in the event of such a Security Breach security breach of such servers or networks.
(cc) SPT Content in APPLE's control or possession, including all hard drive, DVDs, tapes, media or other formats in which such content is Delivered to APPLE pursuant to Exhibit C, shall be stored in a reasonably secure location with restricted access. Once Formatted, such SPT Content shall reside solely on a network server, workstation or equivalent device owned or controlled by APPLE or its contractors, located in the Territory, and shall be reasonably secured with restricted access. Without limiting any right of SPT, but subject to the terms and conditions hereof, in the event that APPLE actually becomes aware of a security breach affecting its Formatting operations such that access to SPT Content becomes available to unauthorized APPLE personnel or other third parties, then APPLE shall promptly take commercially reasonable steps to correct and secure its operations anew.
(dd) SPT acknowledges that APPLE shall use a credit card billing address check to verify that the distribution of Movies to customers is limited to the Territory (if a credit card is used for payment and/or account setup). APPLE agrees to monitor the effectiveness of the address check technology in use on the Online Store, and to share the results with SPT not more than six (6) months after the Effective Date. If such results reveal that distribution of SPT Content through the Online Store is not sufficiently limited to the Territory, then APPLE intends to implement IP address “look-back” or other comparably effective technology within a reasonable period of time.
(ee) APPLE shall not intentionally remove, strip, alter, deactivate or otherwise interfere with any forensic information (e.g., watermarks), rights signaling information (e.g., CGMS-A or CCI) or other content protection trigger (collectively “Information”) as SPT in its reasonable discretion may embed or include with the SPT Content or the metadata, provided that such Information and the extent of such Information shall be commensurate with industry norms, but shall in no event be discernable by a Customer or adversely affect the purchase experience. The Parties shall work together in good faith to determine if any such Information is in fact affected by APPLE’s encoding, preparation or delivery process. If the Information is affected to the extent its utility is rendered inadequate, APPLE and SPT shall discuss in good faith efforts to address the issue within a reasonable period of time.
(ff) Outputs . The Security Solution shall implement the output protections set forth in Sony Pictures Television Inc. 16 Apple Inc. (Movie DHE) (4.28.08) Exhibit H.
(gg) Fraud Detection . APPLE shall monitor excessive registration or de-registration of Transfer Devices from any Customer account. Upon request, APPLE shall advise SPT of its fraud detection measures and its enforcement activities against Customers involved in fraudulent activities, if any. The foregoing is without waiver to any of APPLE’s other obligations hereunder.
13. Record-Keeping and Audit . See Exhibit B
14. Termination and Effect of Termination .
(hh) In addition to SPT's rights under Section 12 hereof, either Party shall have the right, but not the obligation, to terminate this Agreement prior to the expiration of the Term in the event that the other Party: (i) becomes insolvent; (ii) files a petition in bankruptcy; (iii) makes an assignment for the benefit of creditors; or (iv) breaches any material representation, obligation or covenant contained herein, unless such breach is cured prospectively, no later than thirty (30) days from the date of receipt of notice of such breach, or if not able to be so cured, then resolved to the other Party's satisfaction, not to be unreasonably withheld, delayed or conditioned.
(ii) Sections 1, 4, 6(c), 8, l0(b), 11, 13, 14, 15, 16, 17, and 18 hereof shall remain in full force and effect following the expiration or earlier termination of this Agreement. The expiration or earlier termination of this Agreement shall not relieve SPT or APPLE of their respective obligations to make any payments with respect to the Sale of Movies in the periods prior to such expiration or termination (and the associated accounting) in accordance with this Agreement.
(jj) Upon the expiration or earlier termination of this Agreement, all SPT Content, Movies, Clips, and Artwork in APPLE'S possession or control shall be promptly deleted or destroyed from all storage locations, excluding any archival copies required to be maintained by applicable law, rule or regulation.
15. Indemnification and Limitation of Liability .
(kk) APPLE will indemnify and hold harmless, and upon SPT's request, defend, SPT and its affiliates (and their respective directors, officers and employees) from and against any and all losses, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and costs) arising out of a claim by a third party by reason of: (i) any use or distribution by APPLE of the SPT Content in breach of this Agreement; (ii) a breach of any warranty, representation, covenant or obligation of APPLE under this Agreement; or (iii) any claim, suit or demand that the Security Solution or technology used by APPLE in the Fulfillment Activities infringes the intellectual property rights of a third party or violates any law; or (iv) any claim by ASCAP, BMI or SESAC or similar organization having jurisdiction in the Territory that APPLE exercised the performance rights in the musical compositions contained in the Movies without obtaining a valid performance license and/or without payment of a performing rights royalty or license fee, Sony Pictures Television Inc. 17 Apple Inc. (Movie DHE) (4.28.08) if any is required to be paid in connection with the exhibition or distribution of Movies hereunder; provided that (A) where such performance rights are owned or controlled by SPT, such rights have been made available by SPT for licensing to APPLE by such organization, on economic terms which are the same or substantially the same as those customarily offered by ASCAP, BMI and/or SESAC, or (B) where such performance rights are owned or controlled by a third party or parties, such rights have been made available by such third party or parties for licensing to APPLE by the aforementioned organization on economic terms which are the same or substantially the same as those customarily offered by ASCAP, BMI and/or SESAC. APPLE will reimburse SPT and its affiliates on demand for any payments actually made in resolution of any liability or claim that is subject to indemnification under this Section 15 hereof; provided that SPT obtains APPLE's written consent prior to making such payments.
(ll) SPT shall indemnify and hold harmless, and at SPT’S option, defend, APPLE and its affiliates (and their respective shareholders, directors, officers and employees) from and against any and all losses, liabilities, damages, costs or expenses (including, without limitation, reasonable attorneys' fees and costs) arising out of a claim by a third party by reason of: (i) a breach of any warranty, representation, covenant, agreement, promise, or obligation of SPT under this Agreement or any act or omissions inconsistent therewith; or (ii) any claim, suit or demand that any SPT Content, metadata or any other materials provided, delivered or authorized by or on behalf of SPT or its designees hereunder or APPLE's use or other exploitation thereof in compliance with this Agreement violates or infringes the rights of another party (including, without limitation, any claim by a third party with respect to the rights to the musical compositions contained in the Movies (not including payments for exploitation by APPLE of rights described in Section 15(a)(iv)) are controlled by SPT to the extent required for the licensing of the exhibition of such Movies in accordance hereunder). SPT shall reimburse APPLE and its affiliates on demand for any payments actually made in resolution of any liability or claim that is subject to indemnification under this Section 15, provided that APPLE obtains SPT written consent prior to making such payments.
(c) In any case in which indemnification is sought hereunder:
At the indemnifying Party’s option, the indemnifying Party may assume the handling, settlement or defense of any such claim or litigation. If the indemnifying Party assumes the handling, settlement or defense of any such claim or litigation, the Party to be indemnified shall cooperate in the defense of such claim or litigation, and the indemnifying Party’s obligation with respect to such claim or litigation shall be limited to holding the indemnified Party harmless from any final judgment rendered on account of such claim or settlement made or approved by the indemnifying Party in connection therewith, provided that the indemnifying Party may not obligate the indemnified Party without such indemnified Party’s written consent, and expenses and reasonable attorneys fees of the indemnified Party incurred in connection with the defense of such claim or litigation prior to the assumption thereof by the indemnifying Party and any reasonable out-of-pocket expenses for performing such acts as the indemnifying Party shall request. If the indemnifying Party does not assume the handling, settlement or defense of any
Sony Pictures Television Inc. 18 Apple Inc. (Movie DHE) (4.28.08) such claim or litigation, the indemnifying Party shall, in addition to holding the indemnified Party harmless from the amount of any damages awarded in any final judgment entered on account of such claim, reimburse the indemnified Party for reasonable costs and expenses and reasonable outside attorneys fees of the indemnified Party incurred in connection with the defense of any such claim or litigation; and The Party seeking indemnification shall fully cooperate with the reasonable requests of the other Party in its participation in, and control of, any compromise, settlement, litigation or other resolution or disposition of any such claim. The indemnifying Party shall not consent to the entry of any final judgment in any action without the indemnified Party’s prior written approval except, in the case where Supplier is the indemnifying Party, where such consent involves the agreement not to further exploit a Movie. (d) EXCEPT WITH RESPECT TO EACH PARTY’S EXPRESS INDEMNITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR PUNITIVE DAMAGES, EVEN IF ADVISED OF SUCH POSSIBILITY.
NO WARRANTY OR TERM, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE CONDITION, QUALITY, DURABILITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE ONLINE STORE, THE SECURITY SOLUTION, OR ANY ELEMENTS OF THE FOREGOING, IS GIVEN TO, OR SHOULD BE ASSUMED BY, SPT, AND ANY SUCH WARRANTIES AND TERMS ARE HEREBY EXCLUDED.
16. Confidentiality .
Each Party acknowledges that, by reason of this Agreement, it may have access to certain information and materials concerning the other Party's business plans, customers, technology and products that are confidential and of substantial value to such Party, which value would be impaired if such information were disclosed to third parties or used for purposes other than as expressly permitted by this Agreement (collectively "Confidential Information"). Each Party agrees to maintain any and all Confidential Information received from the other, in confidence, and agrees not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing Party. Each Party agrees that Confidential Information may be disclosed to its directors, officers, employees and other personnel under its control and supervision for purposes of performing such Party’s obligations under this Agreement, solely on a so called “need-to-know” basis in furtherance of this Agreement; provided that such Party causes such directors, officers and employees to be bound by non-disclosure obligations no less restrictive than the terms of this Section 16, unless required by law, or court or governmental order. Confidential Information shall be deemed to include, without limitation: (i) information marked confidential, if conveyed in writing, and (ii) information identified orally as confidential, if conveyed orally. Confidential Information shall not be deemed to include any information which (a) is publicly known at the time of the disclosure, (b) becomes publicly known other than by breach of the terms of this Section 16, (c) becomes known to the disclosing Party, Sony Pictures Television Inc. 19 Apple Inc. (Movie DHE) (4.28.08) without restriction, from a source free of any obligation of confidentiality and without breach of this Section 16, (d) information that is already in the public domain, or (e) is independently developed by the disclosing Party.
17. Additional Representations and Warranties .
(mm) Each Party represents and warrants that it has full right, power and authority to enter into this Agreement
(nn) Each Party represents and warrants that it shall perform it obligations hereunder in compliance with any applicable laws, rules and regulations of any governmental authority having jurisdiction over the subject matter hereof.
18. General Provisions .
(oo) No Agency or Joint Venture . The Parties agree and acknowledge that the relationship between the Parties is that of independent contractors acting as supplier and distributor. This Agreement shall not be deemed to create a partnership or joint venture, and neither Party is the other's agent, partner, employee, or representative.
(pp) Contractors . Subject to Section 2(a) hereof, APPLE may enter into agreements with third parties in order to provide Fulfillment Activities on behalf of APPLE, provided that APPLE notifies SPT of the names and services provided by such third party contractors and APPLE causes all such third parties to comply with the terms and conditions this Agreement. To this end, APPLE shall be responsible for the performance of non- performance of such third parties in relation to the Fulfillment Activities hereunder, including, without limitation, with respect to all SPT Content provided to a third party by APPLE.
(qq) Entire Agreement, Modification, Waiver . This Agreement contains the entire understanding of the Parties relating to the subject matter hereof, and supersedes all previous or contemporaneous agreements or arrangements between the Parties relating to the subject matter hereof. This Agreement cannot be changed or modified except by a writing signed by the Parties. A waiver by either Party of any term or condition of this Agreement in any instance shall not be deemed or construed as a waiver of such term or condition for the future, or of any subsequent breach thereof. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable, such determination shall not affect any other provision hereof, and the unenforceable provision shall be replaced by an enforceable provision that most closely meets the commercial intent of the Parties.
(rr) Approvals . All rights of approval and all consents required to be given under this Agreement will be effective only if given in writing by an authorized representative of the applicable Party. Any email sent by SPT or any employee or designee thereof to APPLE for purposes of communicating approval or consent shall be deemed effective. Except as expressly set forth herein to the contrary, all approvals required hereunder shall not be unreasonably withheld. Sony Pictures Television Inc. 20 Apple Inc. (Movie DHE) (4.28.08) (ss) Assignment; Binding on Successors . Neither Party may assign this Agreement (including assignment by merger, consolidation or operation of law) without the written consent of the other party, and any attempted assignment without such consent shall be void; provided, however, that SPT may assign this Agreement to an affiliate without the consent of APPLE and provided, however, that APPLE may assign this Agreement to a wholly-owned subsidiary without the consent of SPT. This Agreement shall be binding on the assigns, heirs, executors, personal representatives, administrators, and successors (whether through merger, operation of law, or otherwise) of the Parties.
(tt) Notices . Any notice under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes: (i) on the delivery date if delivered personally to the Party to whom the same is directed or delivered; (ii) upon delivery by confirmed-receipt facsimile to the appropriate facsimile number set forth below (and, further, confirmation of receipt is made by telephone); (iii) one (1) business day after deposit in the Territory with a commercial overnight carrier where such carrier is instructed to deliver such notice overnight, with written verification of receipt; or (iv) five (5) business days after the mailing date in the Territory, whether or not actually received, if sent by certified mail, return receipt requested, postage and charges prepaid, to the address of the Party to whom the same is directed as set forth below (or such other address as such other Party may supply by written notice duly given):
If to SPT, to the Senior Management contact specified by SPT on the attached Cover Sheet, with a mandatory concurrent copy to the Legal/Business Affairs contact specified by SPT on the attached Cover Sheet.
If to APPLE:
Apple Inc. 1 Infinite Loop, MS 60 1-EC Cupertino, CA 95014 Attn: Eddy Cue Fax: (408) 974-2140
with a courtesy copy, which copy shall not constitute notice hereunder, to:
Apple Inc. 1 Infinite Loop, MS 3-ITMS Cupertino, CA 95014 Attn: Associate General Counsel / ITS Fax: (408) 974-9105
All day-to-day business correspondence with APPLE, apart from notices, shall be directed to Ben Dillon at the address first set forth above. Such correspondence shall not constitute notice hereunder.
(uu) Governing Law; Equitable Relief . This Agreement shall be governed and interpreted in Sony Pictures Television Inc. 21 Apple Inc. (Movie DHE) (4.28.08) accordance with the laws of the State of California, without regard to principles of conflict of laws. The Parties agree that any proceeding relating to this Agreement will take place in the Central District of California; and both Parties hereby waive the right to object to that choice of law, personal jurisdiction or venue.
Notwithstanding anything to the contrary herein, APPLE hereby irrevocably waives any right or remedy to seek and/or obtain injunctive or other equitable relief or any order with respect to, and/or to enjoin or restrain or otherwise impair in any manner, the production, distribution, exhibition or other exploitation of SPT Content or the use, publication or dissemination of any advertising in connection with SPT Content.
(vv) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. Executed copies of this Agreement may be delivered by facsimile transmission in accordance with the notice provision hereof.
(ww) Remedies . To the extent permitted by applicable law, the rights and remedies of the Parties provided under this Agreement are cumulative and in addition to any other rights and remedies of the Parties at law or equity.
(xx) Headings . The titles and/or headings used in this Agreement are for convenience only and are not to be considered in construing or interpreting the Agreement.
(yy) No Third-Party Beneficiaries . This Agreement is for the sole benefit of the Parties and their authorized successors and permitted assigns. Nothing herein, express or implied, is intended to or shall confer upon any person or party, other than the Parties and their authorized successors and permitted assigns, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(zz) Force Majeure . For the purposes of this Agreement, "Force Majeure" shall mean any event which a Party could not foresee, such as fire, flood, acts of God or public enemy, Internet-related failures or interruptions, power outages, earthquakes, governmental or court order, national emergency, strikes, or labor disputes, the effect of which it could not reasonably prevent or predict and which renders impossible or impractical the performance of contractual obligations hereunder either totally or in part. The Party invoking a Force Majeure shall notify the other Party as soon as practicable, but not later than within three (3) business days of its occurrence, by accurately describing all of the material circumstances of the Force Majeure and its effect upon the performance of its contractual obligations hereunder. The occurrence of a Force Majeure hereunder shall have the effect of suspending the obligations of the Party invoking the provisions of this Section 18(l), to the extent such obligations are affected by the Force Majeure. Any contractual dates set forth herein shall be extended for a period equal to the duration of a Force Majeure; provided, however, that in no event will any Force Majeure result in an extension of the Term of this Agreement. The cessation of a Force Majeure shall be communicated, as soon as practicable, by notice to the other Party within three (3) business days of its occurrence by the Party that invoked it.
Sony Pictures Television Inc. 22 Apple Inc. (Movie DHE) (4.28.08) (m) Other Studios; Usage Rules. Each party’s rights and obligations hereunder are subject to and conditioned upon APPLE entering into binding agreements with the other Major Studios listed in Section 2(l) by not later than May 1, 2008 granting APPLE the right to distribute such studios’ current and library feature films on a DHE or “digital sell- through” basis in the Territory with the same content usage rules and content protection requirements as those described in Exhibit A and Exhibit H attached hereto (or content usage rules and content protection requirements that are similar in all material respects to those described in such exhibits).
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by their respective officers thereunto duly authorized.
APPLE INC. SONY PICTURES TELEVISION INC.
By:______By:______
Name: Eddy Cue Name:______
Title: VP, iTunes Title:______
Date: _____/______/2008
Please Send TWO original signed copies to:
Apple Inc. c/o iTunes Store 1 Infinite Loop, MS 3-ITMS Cupertino, CA 95014
Sony Pictures Television Inc. 23 Apple Inc. (Movie DHE) (4.28.08) EXHIBIT A
Content Usage Rules (for DHE Movies)
“Content Usage Rules” shall mean that for each Customer Transaction, APPLE shall only authorize the transmission of a Movie in the Format specified in this Agreement via the Internet to a Permitted Device (as hereinafter defined) of a Customer for use in accordance with the following rules:
“Account” shall mean the iTunes user account used to purchase Movies from the Online Store, which account must have user information, including name, address and valid credit card or other approved payment information.
1. A Movie may be Downloaded via the Internet, in Standard Definition and portable definition resolutions, to any Permitted Device.
a. The result of the download transaction associates the Permitted Device with the Account used for purchasing the Movie and authorizes the Permitted Device to function as defined for Movies acquired from that Account. Such Movie may be viewed an unlimited number of times on authorized Permitted Devices.
2. An Account may authorize (and thus may be associated with) a maximum number of five (5) Transfer Devices at the same time. As a result, a Movie purchased by an Account may be stored and viewable on up to five (5) Transfer Devices at the same time.
a. A Transfer Device may store and view Movies from an unlimited number of Accounts, provided that the Transfer Device is authorized by each Account.
3. A “Primary Computer” is a Transfer Device that meets the following requirements: (i) only one (1) Transfer Device on an Online Store Account, out of the five (5) Transfer Devices permitted under the Content Usage Rules specified herein, can be a Primary Computer at any given time, and (ii) each Device is associated with only one (1) Primary Computer at any given time, and (iii) the Primary Computer limits the transfer of Movies to a Device to no more than five (5) of its associated Accounts at a time.
a. The first time a Device synchronizes with a Transfer Device results in that Transfer Device becoming the Device’s Primary Computer.
b. The Primary Computer passes the Account information of the associated Movies being transferred to the Device. Thus, the Device becomes associated with the Accounts specified by the Primary Computer. A Device must maintain the secure list of its associated Accounts. A Device may become associated with up to five (5) Accounts as a result of transfers from its Primary Computer.
c. A Device may store and view Movies from a maximum of five (5) Accounts at any time established by the Primary Computer. A Device may also download a Movie directly from an Account that it is not already associated with. Thus, the Device may temporarily store and view Movies from greater than five (5) Accounts at a time until such a time as that Device re-syncs with a Transfer Device.
d. A Device may change its Primary Computer, but only if and when the following requirements are met: the result of such change resets the Device, (i) disabling playback of all Movies previously contained on the Device, and (ii) disassociating all previous Accounts from the Device.
4. Movies shall only be transmitted by APPLE to Customers in a resolution not to exceed Standard Definition (up to the maximum resolution specified in Exhibit C) and shall only be playable on Permitted Devices in a resolution not to exceed Standard Definition resolution, unless otherwise agreed to by the Parties in writing with respect to HD.
5. Movies may be Transferred (as hereinafter defined) between a Transfer Device and a Permitted Device, subject to the following requirements and restrictions:
a. A “Transfer” means the transfer of a Movie where a copy of the Movie becomes viewable on the receiving device and on the sending device (i.e., the Transfer Device). A “Transfer” must occur by way of a tethered connection (e.g., by transfer cable via USB, ethernet, Firewire, or similar such means) or a “local” wireless connection (e.g., within the user's home or over a single local-area network). Ethernet or “local” wireless Transfers shall be restricted to local subnets only.
b. Each time a Movie is Transferred, it shall remain encrypted using the encryption provided by the Security Solution. In order to effectuate a Transfer, the Transfer Devices must be associated with the Account that purchased the Movie being Transferred
c. A Movie may only be Transferred between Transfer Devices, and between a Transfer Device and a Device. Transfers are not permitted between Devices.
6. Movies may be “Streamed” amongst Permitted Devices, subject to the following requirements and restrictions:
a. “Streamed” means the transmission of a Movie between Permitted Devices, subject to the rules set forth herein, where no storage or recording occurs on the receiving Permitted Device as a consequence of such process, except for temporary caching or buffering. Once a Streamed transmission finishes, the Movie on the receiving device is no longer viewable.
b. Each time a Movie is Streamed, it shall remain encrypted using the encryption provided by the Security Solution.
c. A Movie may be Streamed by way of a tethered connection (e.g., by transfer cable via USB, ethernet, Firewire, or similar such means) or a “local” wireless connection (e.g., within the user's home or over a single local-area network). Ethernet or “local” wireless Streaming shall be restricted to local subnets only. 25 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) 7. Movies may be used solely for the Customer’s Personal Use.
8. Movies shall at all times be protected by the Security Solution.
9. Movies may not be “burned” or copied onto recordable media in a playable form (i.e., the “export” feature of QuickTime which enables video burning must be disabled for all transactions and Movies in any manner which allows for viewing).
10. Only one copy of a Movie may be Downloaded from the Online Store, provided that such single “copy” may contain multiple resolutions of the Movie (consistent with the distribution rights granted to APPLE in the Agreement).
11. Permitted Devices may only act as either a Transfer Device or as a Device (i.e., Permitted Devices may not act as both a Device and a Transfer Device at the same time). A device that has the capability of acting as either a Device or as a Transfer Device cannot be classified as one type or another by the Customer. APPLE must classify devices as either a Transfer Device or a Device, provided that APPLE may elect to change the classification of a device so long as such classification is intended to implement a long-term change and apply to all such devices following such classification. APPLE must notify SPT in advance of any such change of Device classification.
12. By June 30, 2008, the Content Usage Rules shall allow for manual synchronization of Movies to a Device, but only if and when both of the following requirements are met: (i) such Device has been previously authorized to play back content from one or more Online Store accounts by the Device’s Primary Computer, (ii) such Movies are associated with one of such Primary Computer’s Online Store accounts, and (iii) Movies selected as part of manual synchronization shall be associated with no more than five (5) Accounts. Notwithstanding the foregoing, SPT acknowledges and agrees that the implementation of the foregoing usage rules requires installation of an iTunes software update, which update shall be made readily available as a free download as of June 30, 2008, and the installation of which shall be required to execute Distribution of Movies commencing January 1, 2009.
13. The Content Usage Rules shall allow for auto synchronization of Movies from a Primary Computer to its associated Device, but only if and when the following requirements are met: (i) Movies selected as part of auto synchronization shall be associated with no more than five (5) Accounts, and (ii) the result of auto synchronization replaces entire contents of Device with new content from the Transfer and associates the receiving Device with a new set of Accounts from the Primary Computer based on the transfer not to exceed five (5), and (iii) the Transfer Device must be one (1) out of the five (5) Transfer Devices permitted under Content Usage Rules for each Account represented by the content being transferred.
14. The Content Usage Rules shall allow for auto synchronization of Movies from a non- Primary Computer to a Device, but only if and when the following requirements are met: (i) the result of auto synchronization establishes the Transfer Device as the Device’s Primary
26 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) Computer, and (ii) the result of auto synchronization replaces entire contents of Device with new content from the transfer and associates the receiving Device with a new set of Accounts from the Primary Computer based on the transfer, and (iii) the Transfer Device must be one (1) out of the five (5) Transfer Devices permitted under Content Usage Rules for each Account represented by the content being transferred.
15. The Content Usage Rules shall allow for reverse synchronization of Movies from a Device to a Transfer Device, but only if and when the following requirements are met: (i) Movies must be purchased by an Account associated with both the Device and the Transfer Device.
16. APPLE shall monitor the number of times an Account de-authorizes or authorizes a Transfer Device, and shall upon SPT’s request discuss the results with SPT in relation to curtailing customers’ abusive behavior.
17. If APPLE enters into agreements with Major Studios, as contemplated by Section 18(m) hereof, whereby APPLE agrees to implement content usage rules thereunder, that materially differ from those set forth herein, then (i) APPLE shall notify SPT in writing within thirty (30) days of implementing such different content usage rules (which notice shall describe the additional or different content usage rules in reasonable detail), and (ii) whether or not such notice is provided, SPT shall at any time have the right to have such additional and/or different content usage rules incorporated into this Agreement and applied with respect to SPT's Movies.
27 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) EXHIBIT B
Distributor Price
1. APPLE shall pay SPT the Distributor Price set forth below for each Customer Transaction:
During the Term, Movies made available by SPT pursuant to this Agreement shall be classified by SPT into one of the following Distributor Price tiers:
Tier 1: (e.g., new releases): $15.50 Tier 2: (e.g., recent releases): $8.50 Tier 3 (e.g. catalog): $7.00
Shorts: The greater of: (i) 70% of the consumer price received by APPLE (excluding applicable taxes, duties, levies, or any other payments or deductions required by applicable law) for each Customer Transaction for a short film or (ii) $1.40 per Customer Transaction for a short film. Short films shall be designated by SPT.
2. (a) Subject to the terms of this Section 2(a), the Distributor Price for each Movie shall be determined by SPT in its sole discretion by categorizing such price within one of the price tiers set forth above. SPT shall notify APPLE of the initial Distributor Price for each Movie in the Availability Notice corresponding to such Movie, provided that SPT hereby notifies APPLE that the Distributor Price for Movies available for distribution pursuant to this Agreement that are newly released on DVD shall be the Tier 1 price commencing on the DVD “street date” for such title and continuing through the date that is ninety (90) days following the date SPT elects in its sole discretion to re-categorize the DVD wholesale pricing tier for such title to a tier other than “Tier 1” or the “new release” wholesale price. SPT agrees that, with the exception of the ninety (90) day period described in the immediately preceding sentence during which titles will remain at the Tier 1 Distributor Price, no Movie provided for delivery through the Online Store will be categorized in a higher tier (each a “Tier”) than that Movie is categorized (and wholesale priced) in DVD format anywhere in the Territory, provided that catalog titles that are categorized (and wholesale priced) in DVD format at less than the Tier 3 price will be categorized in Tier 3. Notwithstanding the foregoing, SPT reserves the right to set the Distributor Price at Tier 1 for any “Megahit Movie” regardless of the length of time such title has been available for distribution on DVD.
(b) If APPLE has agreed or enters into any agreement with another DHE provider of theatrical motion pictures that includes Tier 1 (i.e., highest price tier) pricing terms applicable to new release or recent release titles distributed by means of “electronic sell-through” in the Territory, where such pricing terms are more favorable for the provider than Tier 1 are for SPT, then SPT shall be immediately offered, and have the option of accepting, all such more favorable pricing terms, for so long as such agreement is in effect with respect to such pricing; provided that, if such agreement contains additional material obligations (with respect to such Tier 1 pricing) different than the sort contemplated hereby (e.g., exclusivity of titles or release date), then SPT shall comply, as a condition of receiving such higher Tier 1 Distributor Price, with such requirements as it relates to applicable titles provided hereunder. 28 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) (c) If SPT has agreed or enters into any agreement with another DHE Provider of theatrical motion pictures in the Territory that includes Tier 3 (i.e., the tier immediately below the recent release price tier) pricing terms applicable to the highest catalog tier, where such terms are more favorable for such provider than Tier 3 is for APPLE, then APPLE shall be immediately offered, and have the option of accepting, all such more favorable pricing terms, for so long as such agreement is in effect with respect to such pricing; provided that, if such agreement contains additional material obligations (with respect to such tier 3 pricing) different than the sort contemplated hereby (e.g., promotion of titles or release date), then APPLE shall, as a condition of receiving such more favorable Distributor Price, comply with such requirements as it relates to applicable titles provided hereunder.
3. Payment and Reports.
(a) APPLE shall remit payment of all sums due hereunder to SPT, as set forth herein. Payments shall accrue at the time a Customer Transaction is completed. For each Customer Transaction, APPLE shall pay to SPT an amount equal to the fee set forth above (collectively "Video Proceeds").
(b) APPLE shall furnish to SPT, for any month during which payments hereunder have accrued, access to a sales report in accordance with APPLE’s standard business practices, along with payments due for Customer Transactions hereunder, no later than thirty (30) days after the end of each calendar month during the Term. Such report shall set forth aggregate Customer Transaction information for each Movie. Moreover, APPLE shall provide SPT with access to a weekly sales report, as well as the following in formation, provided Apple is capable of providing such information, and Apple provides such information to any other similarly situated supplier to Apple of DHE movie content: (i) daily data detailing sales of SPT titles, (ii) information regarding the number of unique customers purchasing SPT titles, sortable by zip code (but not including any personally identifiable or other private information of customers), (iii) as well as aggregated information regarding customer usage patterns (e.g., the number of devices onto which individual titles have been transferred), and (iv) information regarding the performance and market share of SPT titles on the Online Store and within individual category or genre pages. APPLE shall treat SPT no less favorably than any other provider of feature film DHE content on the Online Store in relation to the provision of customer usage and sales information.
(c) APPLE may withhold any applicable taxes, duties, charges or levies on payments by APPLE to SPT imposed by a government entity having jurisdiction in the Territory; provided that in no event shall APPLE withhold any sales taxes or levies due in connection with its distribution of Movies to Consumers and the Distributor Price due for each Customer Transaction that are specified in this Agreement shall be unreduced by any such tax, levy or similar charge. APPLE shall have the right to remit any such withheld taxes, duties, charges or levies to the appropriate governmental authority. Notwithstanding the foregoing, provided that SPT has fully satisfied all requirements, to APPLE’s reasonable satisfaction, to document its eligibility for a lower or zero rate of withholding tax, including, without limitation, providing 29 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) APPLE with a valid Certificate of Residency, if applicable, then APPLE shall withhold based on the lower withholding tax rate, or, if applicable, shall not withhold.
(d) All payments made by APPLE to SPT hereunder shall be made by electronic funds transfer ("EFT"). APPLE shall, to the extent practicable, use the so- called “ACH” EFT method for payment transfers hereunder, for so long as such method does not cause APPLE to incur any costs or to change its normal custom and practice for making payments. Unless otherwise agreed to by the Parties, SPT shall be responsible for all bank transaction costs or fees arising from such payment and APPLE shall have the right to deduct, or authorize the applicable third party to deduct, such sums from such payments. SPT shall provide APPLE with SPT's banking information (on a form to be provided to SPT by APPLE) reasonably necessary to effect payment including, but not limited to, the following: [EFT bank account information to be provided]
. Bank Name . Account Name . Account Number . Routing Number
3. Record-Keeping and Audit.
(a) APPLE shall maintain and keep complete and accurate books and records concerning the amounts payable to SPT hereunder for a period of two (2) years thereafter.
(b) Upon reasonable advance written notice, in no event less than thirty (30) days, during the Term and for up to eighteen (18) months thereafter (the "Audit Period"), SPT, at its sole expense, may appoint an independent certified public accountant, or a person whose practice regularly includes audits concerning the subject matter hereof, not then engaged in any audit of APPLE or SPT to audit applicable books and records of APPLE at APPLE's principal place of business in the United States for the sole purpose of verifying the amounts due from APPLE to SPT hereunder. Such audit shall take place during regular business hours, and shall not occur more than twice during any twelve (12) month period. Such accountant or person shall not be engaged on a contingency-fee basis and, as a condition hereto, shall sign (and cause any employer or affiliated parties of such accountant or person to sign) and deliver to APPLE a confidentiality agreement in a form acceptable to APPLE that protects APPLE's Confidential Information no less favorably than the applicable terms of this Agreement and no less favorably than SPT protects its own similar information. SPT may audit information contained in a particular statement only once, and no audit shall be allowed or conducted for a period spanning less than six (6) months. If such audit indicates an error in excess of 10% of the Video Proceeds due for the period covered by such audit, Apple shall, in addition to making immediate payment of the additional payments due, pay to SPT (i) the actual, direct, reasonable out of pocket costs and expenses incurred by SPT for any audit, and (ii) any outside attorney’s fees incurred by SPT in enforcing the collection thereof (to the extent such fees are reasonable). 30 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) (c) SPT shall be deemed to have consented to all accountings rendered by APPLE hereunder, unless a written objection is made concerning such accountings during the applicable Audit Period, as set forth above.. Said accountings shall be binding upon SPT and shall not be subject to any objection by SPT for any reason, unless specific objections are provided to APPLE in writing or SPT commences an audit of APPLE during the Audit Period. SPT agrees that APPLE's books and records constitute Confidential Information.
31 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) EXHIBIT C
Delivery / Conversion
1. Delivery
a. Format
SPT shall provide APPLE with Intermediate Encodes for each Movie with the following specifications either:
(i) Movie and Trailer in Apple ProRes 422 HQ format (preferred) delivered as a .mov file with left and right stereo audio and (as available) 5.1 audio (left, center, right, left surround, right surround, and low-frequency effects) delivered as LPCM audio with tracks tagged with their appropriate channel in .mov format. SPT shall provide Intermediate Encodes to APPLE as part of a package as specified by the then-current Movie specification to include (required) Movie metadata, poster art and (as available) closed captioning, sub-titles, and chaptering information (collectively “Intermediate Encodes Format”); or
(ii): Video: PhotoJPEG (alternate) @ 100% quality in a QuickTime wrapper, Native Frame rate (24p for film source, 30i or 25i for video source); Audio: Stereo or 5.1 uncompressed 16bit; or in such other encoded format as the Parties may mutually agree upon, for video and/or audio content, provided that the video and audio quality and integrity, attributable to such format(s), of Movies is no less than, and at least commensurate with, the then-current quality and integrity of Movies of audio-visual content files from any other motion picture studios that are similarly made available for DHE distribution from the Online Store; or in such other encoded format as the Parties may mutually agree (“Delivery Method”).
b. Method
SPT shall, from its offices in Culver City, California deliver each file of SPT Content to APPLE (or a third party designated in writing by APPLE) at APPLE’s or its designee’s offices in Cupertino, California by way of either an Internet server located in California (using the Apple supplied software, Transporter) or via a “load and leave” process as described in Title 18, California Code of Regulations § 1502. Any such “load and leave” process shall use Mac formatter hard drives. All right, title and interest in and to the physical media embodying the SPT Content delivered by SPT to APPLE hereunder shall remain with SPT.
32 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) 2. Conversion.
a. APPLE may convert each file of SPT Content into Movies and Format them for distribution from the Online Store as follows: (i) for the video track, into H.264 Advanced Video Codec (“AVC”); (ii) for the audio track, into MPEG-4 Advanced Audio Coding (“AAC”); (iii) in such other reasonable encoded format as APPLE may request for the video and/or audio track, provided that the quality and integrity, attributable to such Format(s), is no less than, and at least commensurate with, the then-current quality and integrity of video and/or audio tracks of comparable content providers as SPT that are similarly made available for distribution on and delivered from the Online Store; or in such other encoded format as the Parties may mutually agree upon in writing.
b. Each Movie may include more than one (1) copy of the video track and one (1) copy of the audio track, each in a different resolution (none greater than 720 x 480 pixels) or sound quality to accommodate efficient transfer and enhanced rendering of the SPT Content to different Format Devices; provided that only one (1) copy of the video track of any Movie may be copied by the Customer to a single Device. In the alternative, a Movie may be transcoded to an appropriate Format and resolution as part of its transfer to a particular Device; provided that any given Device shall not receive a transfer of more than one (1) video track of the same Movie. APPLE may redeliver Videos to customers in an enhanced format without the consent of SPT. For purposes of this Agreement, "Standard Definition" or "SD" shall mean a resolution lower than 720p. APPLE shall not distribute any Movie in a resolution exceeding SD, and in no event shall APPLE advertise, promote or represent to Customers that Movies in SD resolution, as defined above, are in high definition resolution (“HD”).
c. SPT shall provide closed captioning for Movies where available and whenever offered to other DHE Providers. SPT shall provide all Movies to Apple in the English language and, where available and whenever offered to other DHE Providers, the Spanish language.
33 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) EXHIBIT D
SPT Content
DHE Availability Release DHE Distributor Distributor Price Title Date Year MPAA Rating Price Tier 13 Going on 30 8/1/2006 2004 PG-13 $7.00 3 28 Days 2/20/2007 2000 PG-13 $7.00 3 30 Days of Night 2/26/2008 2007 R $15.50 1 6th Day, The 3/6/2007 2000 PG-13 $7.00 3 7 Seconds 7/3/2007 2005 R $7.00 3 8 MM 2 12/5/2006 2005 R $7.00 3 About Last Night 4/4/2006 1986 R $7.00 3 Across the Universe 2/5/2008 2007 PG-13 $15.50 1 Adam Sandler's Eight Crazy Nights 6/6/2006 2002 PG-13 $7.00 3 Adaptation 10/17/2006 2002 R $7.00 3 Adventures of Baron Munchausen 4/4/2006 1989 PG $7.00 3 Adventures of Elmo in Grouchland 11/21/2007 1999 G $7.00 3 Adventures of Milo & Otis 2/20/2007 1989 G $7.00 3 Against All Odds 12/19/2006 1982 R $7.00 3 Age of Innocence 8/7/2007 1993 PG $7.00 3 Agnes of God 4/4/2006 1985 PG-13 $7.00 3 Air Force One 5/1/2007 1997 R $7.00 3 Ali 3/20/2007 2001 R $7.00 3 Alien Hunter 11/7/2006 2003 R $7.00 3 All the King's Men 12/19/2006 2006 PG-13 $7.00 3 All the Pretty Horses 6/20/2006 2000 PG-13 $7.00 3 Already Dead 1/15/2008 2007 R $15.50 1 American Movie 2/20/2007 1999 R $15.50 1 America's Sweethearts 2/6/2007 2001 PG-13 $7.00 3 Anacondas: Hunt For the Blood Orchid 3/6/2007 2004 PG-13 $7.00 3 Anatomy 2 10/3/2006 2003 R $15.50 1 Anatomy of a Murder Now 1959 NR $15.50 1 Angel-A 11/20/2007 2005 R $15.50 1 Angels Fall 8/7/2007 2006 NR $7.00 3 Anger Management 6/6/2006 2003 PG-13 $7.00 3 Animal, The 5/1/2007 2001 PG-13 $7.00 3 April Fool's Day Now 2008 UR $15.50 1 Apt Pupil 11/21/2007 1998 R $7.00 3 Are We Done Yet? 8/7/2007 2007 PG TBD 2 Are We There Yet? 4/4/2006 2005 PG $7.00 3 Arlington Road Now 1999 R $7.00 3 Art Heist 7/3/2007 2004 R $7.00 3 As Good As It Gets 4/4/2006 1997 PG-13 $7.00 3 Attack Force 12/5/2006 2006 R $7.00 3 Attack of the Gryphon 4/3/2007 2007 PG-13 TBD 2 Auto Focus 7/18/2006 2002 R $7.00 3 Avalon 7/17/2007 1990 PG $7.00 3 Awakenings 7/17/2007 1990 PG $7.00 3 Awful Truth, The Now 1937 NR $15.50 1 Baby Boy 1/16/2007 2001 R $7.00 3 Baby Geniuses 9/5/2006 1999 PG $7.00 3 Baby-Sitters Club, The 9/18/2007 1995 PG $7.00 3 34 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) Bachelor Party Vegas 4/25/2006 2006 N/A $7.00 3 Bad Boys 4/4/2006 1995 R $7.00 3 Bad Boys 2 3/6/2007 2003 R $7.00 3 Basic 2/20/2007 2003 R $7.00 3 Bats: Human Harvest 3/11/2008 2008 R $15.50 1 Battle of the Brave 11/7/2006 2004 PG-13 $7.00 3 Beautiful Country, The 1/16/2007 2005 R $7.00 3 Benchwarmers, The 7/18/2006 2006 PG-13 $7.00 3 Beverly Hills Ninja 4/4/2006 1997 PG-13 $7.00 3 Bewitched (2005) 4/4/2006 2005 PG-13 $7.00 3 Big Daddy 6/6/2006 1999 R $7.00 3 Big Hit, The 6/5/2007 1998 R $7.00 3 Bingo 4/4/2006 1991 PG $7.00 3 Black and White 4/17/2007 2000 R $7.00 3 Black Book 9/25/2007 2006 R TBD 2 Black Hawk Down 6/20/2006 2003 R $7.00 3 Black Mask 2: City of Masks 6/20/2006 2002 R $7.00 3 Black Water 2/19/2008 2007 R $15.50 1 Blankman 6/5/2007 1994 PG-13 $7.00 3 Blonde Ambition 1/22/2008 2008 PG-13 $15.50 1 Blue Smoke 9/11/2007 2006 NR $7.00 3 Blue Streak 4/3/2007 1999 PG-13 $7.00 3 Boa 8/15/2006 2002 R $7.00 3 Boa vs. Python 8/15/2006 2004 R $7.00 3 Bobby Jones Stroke of Genius 8/15/2006 2004 PG $7.00 3 Bobby Z 9/4/2007 2007 R TBD 2 Boogeyman 4/4/2006 2005 PG-13 $7.00 3 Boogeyman 2 1/8/2008 2008 UR $15.50 1 Bottoms Up 9/26/2006 2006 R $7.00 3 Boynton Beach Club 2/6/2007 2006 R $7.00 3 Bram Stoker's Dracula 5/15/2007 1992 R $7.00 3 Breakfast on Pluto 4/18/2006 2005 R $7.00 3 Brian's Song 1/16/2007 1971 NR $7.00 3 Bridge On The River Kwai 4/4/2006 1957 NR $15.50 1 Broken Trail 9/5/2006 2006 N/A TBD 2 Brothers in Arms 10/2/2007 2004 R $7.00 3 Brothers Solomon 12/26/2007 2007 R $15.50 1 Buddy 9/4/2007 1997 PG $7.00 3 Buddy Holly Story, The 10/2/2007 1978 PG $7.00 3 Cable Guy 4/3/2007 1996 PG-13 $7.00 3 Caché (Hidden) 6/27/2006 2005 R $7.00 3 Candy Stripers 6/27/2006 2006 R $7.00 3 Can't Hardly Wait 8/1/2006 1998 PG-13 $7.00 3 Carolina Moon 9/11/2007 2007 NR $7.00 3 Casualties of War 4/4/2006 1989 R $7.00 3 Catch and Release 5/8/2007 2007 PG-13 TBD 2 Cave, The 4/4/2006 2005 PG-13 $7.00 3 Cavern, The 7/18/2006 2006 R $7.00 3 Celestine Prophecy, The 12/19/2006 2006 PG $7.00 3 Chances Are 4/4/2006 1989 PG $7.00 3 Charlie's Angels 3/6/2007 2000 PG-13 $7.00 3 Charlie's Angels Full Throttle 5/2/2006 2003 PG-13 $7.00 3 Charm School 1/29/2008 2007 R $15.50 1 Chasing Ghosts 3/20/2007 2005 R TBD 2 Cheech and Chong's Nice Dreams 6/5/2007 1981 R $7.00 3 Christine 7/17/2007 1983 R $7.00 3 Christmas Do-Over 10/16/2007 2006 NR $15.50 1 Christmas with the Kranks 9/5/2006 2004 PG $7.00 3 35 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) Cirque du Soleil: Corteo 4/11/2006 2006 NR $15.50 1 Cirque du Soleil: Lovesick 5/30/2006 2006 NR $15.50 1 City of Lost Children 1/16/2007 1995 R $15.50 1 Click 10/10/2006 2006 PG-13 TBD 2 Cliffhanger 7/3/2007 1993 R $7.00 3 Clive Barker's The Plague 10/24/2006 2006 R $7.00 3 Close Encounters of the Third Kind 4/17/2007 1977 PG $7.00 3 Closer 10/17/2006 2004 R $7.00 3 Closure 9/18/2007 2007 R TBD 2 Comanche Moon: The Second Chapter in the Lonesome Dove Saga 2/26/2008 2007 NR $15.50 1 Company, The 8/7/2007 2003 PG-13 $7.00 3 Company, The (2007) 10/23/2007 2007 TBD $15.50 1 Confessor, The 3/20/2007 2005 PG-13 TBD 2 Connor's War 9/26/2006 2006 R $7.00 3 Conspiracy 3/18/2008 2008 R $15.50 1 Contractor, The 7/10/2007 2007 R TBD 2 Covenant, The 1/2/2007 2006 PG-13 $7.00 3 Craft, The 1/16/2007 1996 R $7.00 3 Crazy in Alabama 8/7/2007 1999 PG-13 $7.00 3 Crossover 2/27/2007 2006 PG-13 TBD 2 Crossroads 10/2/2007 1986 R $7.00 3 Crouching Tiger, Hidden Dragon 7/18/2006 2003 PG-13 $7.00 3 Cruel Intentions 9/5/2006 1999 R $7.00 3 Cruel Intentions 2 6/19/2007 2000 R $7.00 3 Curse of the Golden Flower 3/27/2007 2006 R TBD 2 D.E.B.S. 4/4/2006 2005 PG-13 $7.00 3 Da Vinci Code, The 11/14/2007 2006 PG-13 TBD 2 Daddy Day Camp 1/29/2008 2007 PG $15.50 1 Daddy Day Care 9/5/2006 2003 PG $7.00 3 Dance With Me 10/2/2007 1998 PG $7.00 3 Dark, The 4/4/2006 2006 R TBD 2 Darkness Falls 5/16/2006 2003 PG-13 $7.00 3 Dead Birds 8/21/2007 2005 R $7.00 3 Death Tunnel 11/21/2007 2005 R TBD 2 Decoys 2: Alien Seduction 3/6/2007 2007 R TBD 2 Deep End of the Ocean 1/16/2007 1999 PG-13 $7.00 3 Desperado 11/7/2006 1995 R $7.00 3 Detonator, The 4/4/2006 2006 N/A $7.00 3 Deuce Bigelow: European Gigolo 4/4/2006 2005 R $7.00 3 Devil and Daniel Johnston, The 9/19/2006 2006 PG-13 TBD 2 Devil's Own, The 9/18/2007 1997 R $7.00 3 Devour 5/15/2007 2005 R $7.00 3 Dick 7/18/2006 1999 PG-13 $7.00 3 Dirty 4/4/2006 2006 R $7.00 3 Dogtown and Z Boys 7/18/2006 2002 PG-13 $7.00 3 Doing Hard Time 8/7/2007 2004 R $7.00 3 Donnie Brasco 4/4/2006 1997 R $7.00 3 Don't Come Knocking 8/8/2006 2006 R TBD 2 Dr. Strangelove 4/3/2007 1964 NR $7.00 3 Dragon-Wars 1/8/2008 2007 PG-13 $15.50 1 Dreamland 12/19/2006 2006 PG-13 TBD 2 Dresser, The 8/7/2007 1983 PG $7.00 3 Driving Lessons 7/3/2007 2006 PG-13 TBD 2 Dying Gaul, The 6/19/2007 2005 R $7.00 3 Easy Rider 4/4/2006 1969 R $7.00 3 Edison Force 7/11/2006 2006 R $7.00 3 Eight Millimeter 12/5/2006 1999 R $7.00 3 El Mariachi 3/6/2007 1993 R $7.00 3 Empire of the Wolves, The 3/20/2007 2005 R $7.00 3 End Game 5/2/2006 2006 R $7.00 3 End of the Affair, The 8/15/2006 1999 R $7.00 3 Enough 3/20/2007 2002 PG-13 $7.00 3 36 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) Evening With Kevin Smith, An - Part 2: Evening Harder 11/7/2006 2006 NR TBD 2 Exorcism of Emily Rose, The 4/4/2006 2005 PG-13 $7.00 3 Eye of the Beholder 2/20/2007 2000 R $7.00 3 Face of Terror 10/2/2007 2004 R $7.00 3 Facing the Giants 1/30/2007 2006 PG TBD 2 Fan, The 12/5/2006 1996 R $7.00 3 Fatal Contact: Bird Flu In America 10/31/2006 2006 TBD $7.00 3 Feel the Noise 1/29/2008 2007 PG-13 $15.50 1 FIFA 2006 World Cup Film: The Grand Finale Now 2007 TBD $7.00 3 Fifth Element, The 6/19/2007 1997 PG-13 $7.00 3 Final Fantasy 7/4/2006 2003 PG-13 $7.00 3 Finding Forrester 7/17/2007 2000 PG-13 $7.00 3 First Knight 8/7/2007 1995 PG-13 $7.00 3 Flatliners 4/4/2006 1990 R $7.00 3 Flight of Fury 2/20/2006 2007 R TBD 2 Fly Away Home 1/16/2007 1996 PG $7.00 3 Flywheel (Director's Cut) 11/13/2007 2003 NR TBD 2 Fog, The 4/4/2006 2005 PG-13 $7.00 3 For Da Love of Money 9/5/2006 2002 R $7.00 3 Forgotten, The 5/30/2006 2004 PG-13 $7.00 3 Forsaken, The 1/16/2007 2001 R $7.00 3 Fortress 2: Re-Entry 1/2/2007 2000 R $7.00 3 Frankenfish 8/15/2006 2004 R $7.00 3 Freedomland 5/30/2006 2006 R $7.00 3 Friends With Money 8/29/2006 2006 R $7.00 3 Fright Night 10/2/2007 1985 R $7.00 3 From Here to Eternity 8/7/2007 1953 NR $7.00 3 Fun With Dick & Jane 4/4/2006 2005 PG-13 $7.00 3 G 12/19/2006 2005 R $7.00 3 Gabriel 2/19/2008 2007 R $15.50 1 Gattaca 7/4/2006 1997 PG-13 $7.00 3 Geronimo 5/16/2006 1993 PG-13 $7.00 3 Ghost Rider 6/12/2007 2007 PG-13 TBD 2 Ghostbusters 4/3/2007 1984 PG $7.00 3 Ghostbusters II 10/17/2006 1989 PG $7.00 3 Gigli 10/17/2006 2003 R $7.00 3 Girl, Interrupted 4/3/2007 1999 R $7.00 3 Glass House: The Good Mother 10/3/2006 2006 R $7.00 3 Glory 5/1/2007 1989 R $7.00 3 Go 4/3/2007 1998 R $7.00 3 God Grew Tired of Us 8/14/2007 2007 PG TBD 2 Gods Must Be Crazy, The 5/1/2007 1984 PG $7.00 3 Godzilla (1998) 6/20/2006 1998 PG-13 $7.00 3 Godzilla 2000 1/16/2007 2000 PG $7.00 3 Godzilla vs. Mothra 5/1/2007 1992 N/A TBD 2 Godzilla: Final Wars 5/1/2007 2005 PG-13 $7.00 3 Gospel, The 4/4/2006 2005 PG $7.00 3 Goya's Ghosts 2/26/2008 2006 R $15.50 1 Gridiron Gang 1/23/2007 2006 PG-13 TBD 2 Groundhog Day 5/1/2007 1993 PG $7.00 3 Grudge 2, The 2/6/2007 2006 PG-13 TBD 2 Grudge, The 2/6/2007 2004 PG-13 $7.00 3 Guess Who 4/4/2006 2005 PG-13 $7.00 3 Guess Who's Coming to Dinner 4/4/2006 1967 NR $7.00 3 Half Nelson 2/13/2007 2006 R TBD 2 Half Past Dead 11/7/2006 2002 PG-13 $7.00 3 Half Past Dead 2 5/15/2007 2007 R TBD 2 Happy Birthday to Me 10/2/2007 1984 R TBD 2 Hard Corps, The 8/29/2006 2006 R $7.00 3 Hard Luck 10/17/2006 2006 R $7.00 3 Heights 4/4/2006 2005 R TBD 2 Hellboy 8/15/2006 2003 PG-13 TBD 2 High School High 10/17/2006 1996 PG-13 $7.00 3 37 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) Higher Learning 11/21/2007 1995 R $7.00 3 Hitch 4/4/2006 2005 PG-13 $7.00 3 Holiday, The 3/20/2007 2006 PG-13 $15.50 1 Hollow Man 2 5/23/2006 2006 R $7.00 3 Hollywood Homicide 7/18/2006 2003 PG-13 $7.00 3 Homegrown 6/5/2007 1998 R $7.00 3 Hook 4/17/2007 1991 PG $7.00 3 House of Flying Daggers 4/4/2006 2005 PG-13 $7.00 3 Hunt For Eagle One 11/7/2006 2006 R $7.00 3 Hunt For Eagle One: Crash Point 6/27/2006 2006 R $7.00 3 Hunt for the BTK Killer 3/20/2007 2007 TBD $7.00 3 Hush 1/16/2007 1998 PG-13 $7.00 3 I Know Who Killed Me 11/27/2007 2007 R $15.50 1 I Like it Like That 9/4/2007 1994 R $7.00 3 I Love You to Death 4/4/2006 1990 R $7.00 3 I Spy 5/2/2006 2002 PG-13 $7.00 3 I Still Know What You Did Last Summer 8/15/2006 1998 R $7.00 3 Ice Spiders 10/16/2007 2007 R $7.00 3 Identity 12/5/2006 2003 R $7.00 3 Idle Hands 9/19/2006 1999 R $7.00 3 If Lucy Fell 4/4/2006 1996 R $7.00 3 If Only 5/9/2006 2006 NR $7.00 3 I'll Always Know What You Did Last Summer 8/12/2006 2006 R TBD 2 I'll Do Anything 8/21/2007 1994 PG-13 $7.00 3 Immediate Family 10/2/2007 1989 PG TBD 2 Immortal Beloved 9/4/2007 1994 R $7.00 3 In Cold Blood 10/16/2007 1967 R TBD 2 In God's Hands 7/3/2007 1998 PG-13 $7.00 3 In the Line of Fire 4/4/2006 1993 R $7.00 3 Incubus Now 2005 UR TBD 2 Interview 12/11/2007 2007 R $15.50 1 Into the Sun 4/4/2006 2005 R $7.00 3 It Happened One Night 4/4/2006 1934 NR $15.50 1 It's All Gone Pete Tong 10/16/2007 2005 R TBD 2 Jackie Chan's: The Myth 10/30/2007 2005 TBD TBD 2 Jagged Edge 8/15/2006 1985 R $7.00 3 Jakob the Liar 4/17/2007 1999 PG-13 $7.00 3 Jane Austen Book Club, The 3/21/2008 2007 PG-13 $15.50 1 Jawbreaker 4/17/2007 1999 R $7.00 3 Jesse Stone: Sea Change 2/26/2008 2007 NR $15.50 1 Jimmy Carter Man From Plains 3/25/2008 2007 PG $15.50 1 Joe Dirt 4/3/2007 2001 PG-13 $7.00 3 John Carpenter's Ghosts of Mars 3/6/2007 2001 R $7.00 3 John Carpenter's Vampires 10/3/2006 1998 R $7.00 3 Johnny Mnemonic 7/4/2006 1995 R $7.00 3 Joyeux Noel 11/14/2007 2005 PG $7.00 3 Jumanji 4/4/2006 1995 PG $7.00 3 Junebug 4/4/2006 2005 R TBD 2 Juror, The 12/5/2006 1996 R $7.00 3 Karate Kid III, The 9/19/2006 2003 PG $7.00 3 Karate Kid Part II, The 5/2/2006 1989 PG $7.00 3 Karate Kid, The 3/20/2007 1984 PG $7.00 3 Kaw 10/23/2007 2007 R $7.00 3 King Maker, The 4/3/2007 2007 R TBD 2 Kings of South Beach 10/16/2007 2007 NR TBD 2 Knight's Tale, A 6/5/2007 2001 PG-13 $7.00 3 Knock Off 5/2/2006 1998 R $7.00 3 Krull 4/4/2006 1983 PG $7.00 3 Kung Fu Hustle 4/4/2006 2005 R $7.00 3 L 'Enfant (The Child) 8/15/2006 2005 R TBD 2 La Bamba 9/19/2006 1987 PG $7.00 3 Last Action Hero 4/17/2007 1993 PG-13 $7.00 3 Last Day of Summer 8/28/2007 2007 TV-Y7 TBD 2 38 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) Last Dragon, 8/21/2007 1985 PG-13 $7.00 3 Last Time, The 7/10/2007 2007 R $7.00 3 Laurel Canyon 2/20/2007 2003 R $7.00 3 Lawrence of Arabia 5/1/2007 1962 NR $7.00 3 Layer Cake 12/5/2006 2005 R $7.00 3 Left Behind: World at War 11/21/2007 2005 PG-13 $7.00 3 Legend of Zorro, The 4/4/2006 2005 PG $7.00 3 Legends of the Fall 2/20/2007 1994 R $7.00 3 Lies and Alibis 12/5/2006 2006 R $7.00 3 Lightning in a Bottle 8/21/2007 2004 PG-13 $7.00 3 Little Black Book 8/15/2006 2004 PG-13 $7.00 3 Little Man 11/7/2006 2006 PG-13 TBD 2 Little Women 5/15/2007 1994 PG $7.00 3 Lives of Others, The 8/21/2007 2006 R TBD 2 Lockdown 7/18/2006 2000 R $7.00 3 London 5/23/2006 2006 R $7.00 3 Lonely Hearts 7/31/2007 2006 R $7.00 3 Look Who's Talking 9/5/2006 1989 PG-13 $7.00 3 Lords of Dogtown 4/4/2006 2005 PG-13 $7.00 3 Lost in Yonkers 7/17/2007 1993 PG $7.00 3 Lost Skeleton of Cadavra, The 9/18/2007 2004 PG $7.00 3 Love and a Bullet 7/3/2007 2002 R $7.00 3 Love Lies Bleeding 1/15/2008 2008 R $15.50 1 Madeline 8/21/2007 1998 PG $7.00 3 Magic in the Water 9/18/2007 1995 PG $7.00 3 Magma 12/26/2006 2006 PG-13 TBD 2 Maid in Manhattan 8/1/2006 2002 PG-13 $7.00 3 Make It Funky! 11/21/2007 2005 NR $7.00 3 Man from Elysian Fields, The 10/16/2007 2002 R $15.50 1 Man of the House 4/3/2007 2005 PG-13 $7.00 3 Marie Antoinette 2/13/2007 2006 PG-13 $7.00 3 Marilyn Hotchkiss' Ballroom Dancing and Charm School 7/4/2006 2006 PG-13 $7.00 3 Marksman, The 7/3/2007 2005 R $7.00 3 Marsh, The 4/17/2007 2007 TBD $7.00 3 Mary Reilly 9/4/2007 1996 R $7.00 3 Mary Shelly's Frankenstein 3/20/2007 1994 R $7.00 3 Mask of Zorro 11/7/2006 1998 PG-13 $7.00 3 Master of Disguise, The 1/16/2007 2002 PG $7.00 3 Medallion, The 5/2/2006 2003 PG-13 $7.00 3 Memento 12/5/2006 2001 R $7.00 3 Memoirs of a Geisha 4/4/2006 2005 PG-13 $7.00 3 Memory of a Killer, The 4/4/2006 2005 R $7.00 3 Men In Black 7/4/2006 1997 PG-13 $7.00 3 Messenger, The : The Story of Joan of Arc 6/19/2007 1999 R $7.00 3 Messengers, The 6/5/2007 2007 PG-13 TBD 2 MirrorMask 4/4/2006 2005 PG $7.00 3 Missing, The 12/19/2006 2003 R $7.00 3 Missionary Man 1/22/2008 2008 R $15.50 1 Moliere 3/22/2008 2007 PG-13 $15.50 1 Mona Lisa Smile 9/19/2006 2003 PG-13 $7.00 3 Money Train 10/16/2007 1995 R $7.00 3 Monster 6/19/2007 2003 R $7.00 3 Monster House 10/24/2006 2006 PG TBD 2 Montana Sky 8/7/2007 2007 NR $7.00 3 Mothman Prophecies, The 3/20/2007 2002 PG-13 $7.00 3 Motives 8/21/2007 2003 R $7.00 3 Motives 2: Retribution 5/1/2007 2007 R TBD 2 Mountain Patrol 8/29/2006 2006 PG-13 TBD 2 Mr. Deeds 4/3/2007 2002 PG-13 $7.00 3 Multiplicity 9/19/2006 1996 PG-13 $7.00 3 Muppets From Space 9/18/2007 1999 G $7.00 3 Muppets Take Manhattan, The 6/20/2006 1984 G $7.00 3 My Best Friend's Wedding 4/4/2006 1997 PG-13 $7.00 3 39 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) My Girl 5/26/2006 1991 PG $7.00 3 My Girl 2 5/16/2006 1994 PG $7.00 3 My Kid Could Paint That 3/4/2008 2007 PG-13 $15.50 1 My Life 10/16/2007 1993 PG-13 TBD 2 My Stepmother is an Alien 4/4/2006 1988 PG-13 $7.00 3 National Lampoon's Pucked 4/17/2007 2007 R $7.00 3 National Security 4/3/2007 2003 PG-13 $7.00 3 Net 2.0, The 12/5/2006 2006 R TBD 2 Net, The 7/18/2006 1995 PG-13 $7.00 3 New Best Friend 6/20/2006 2002 R TBD 2 New Guy, The 6/20/2006 2002 PG-13 $7.00 3 Next Karate Kid, The 8/15/2006 1994 PG $7.00 3 Night Skies 1/23/2007 2007 TBD TBD 2 Nine Lives 4/4/2006 2005 R $7.00 3 Nines, The 1/29/2008 2007 R $15.50 1 Not Another Teen Movie 4/3/2007 2001 R $7.00 3 November 4/4/2006 2005 R $7.00 3 Nowhere to Run 2/20/2007 1993 R $7.00 3 Odessa File, The 10/16/2007 1974 PG $7.00 3 Offside 8/28/2007 2006 PG $15.50 1 Oliver Twist 4/4/2006 2005 PG-13 $7.00 3 On The Waterfront 5/16/2006 1954 N/A $15.50 1 Once Upon A Time In Mexico 3/6/2007 2003 R $7.00 3 One, The 1/2/2007 2001 PG-13 $7.00 3 Open Season 1/30/2007 2006 PG TBD 2 Outpost 3/11/2008 2008 R $15.50 1 Panic Room 10/3/2006 2002 R $7.00 3 Paprika 11/27/2007 2006 R $15.50 1 Passenger, The 4/4/2006 1975 PG-13 TBD 2 Patriot (2000), The 3/6/2007 2000 R $7.00 3 People vs. Larry Flynt, The 11/21/2007 1996 R $7.00 3 Perfect 9/18/2007 1985 R $7.00 3 Perfect Day, A 12/11/2007 2006 NR $15.50 1 Perfect Stranger 8/21/2007 2007 R TBD 2 Philadelphia 4/4/2006 1993 PG-13 $7.00 3 Pistol Whipped 3/4/2008 2008 R $15.50 1 Poetic Justice 5/15/2007 1993 R $7.00 3 Population 436 9/5/2006 2006 R $7.00 3 Prince and the Pauper, The 2/5/2008 2007 PG TBD 2 Prince of Tides, The 3/20/2007 1991 R $7.00 3 Principal, The 9/19/2006 1987 R $7.00 3 Professional, The 12/5/2006 1994 R $7.00 3 Puff Puff Pass 5/9/2006 2006 R $7.00 3 Pulse 10/16/2007 1988 PG $7.00 3 Pumpkinhead 4: Blood Feud 10/2/2007 2007 R TBD 2 Pursuit of Happyness, The 3/27/2007 2006 TBD TBD 2 Quicksilver 12/19/2006 1986 N/A $7.00 3 Race the Sun 8/7/2007 1996 PG TBD 2 Radio 6/20/2006 2003 PG $7.00 3 Radio Flyer 3/20/2007 1992 PG-13 $7.00 3 Real Genius 6/5/2007 1985 PG $7.00 3 Reign Over Me 10/9/2007 2007 R TBD 2 Remains of the Day, The 6/19/2007 1993 PG $7.00 3 Rent 4/4/2006 2005 PG-13 $7.00 3 Replacement Killers, The 6/19/2007 1998 R $7.00 3 Resident Evil 1/2/2007 2002 R TBD 2 Resident Evil: Apocalypse 7/4/2006 2003 R TBD 2 Resident Evil: Extinction 1/1/2008 2007 R $15.50 1 Revenge 7/3/2007 1990 R $7.00 3 Revolver 3/18/2008 2005 R $15.50 1 Riding Giants 8/15/2006 2004 PG-13 $15.50 1 Riding in Cars With Boys 4/17/2007 2001 PG-13 $7.00 3 Ringers: Lord of the Fans 6/5/2007 2005 PG-13 TBD 2 40 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) Rise: Blood Hunter 10/9/2007 2007 UR TBD 2 River Runs Through It, A 6/19/2007 1992 PG $7.00 3 Road House 2 7/11/2006 2006 R TBD 2 Road To Guantanamo 10/24/2006 2006 TBD TBD 2 Robert Ludlum's Covert One: The Hades Factor 7/25/2006 2006 NR $7.00 3 Robin and Marian 10/16/2007 1976 PG $15.50 1 Rocket Gibraltar 9/4/2007 1988 PG TBD 2 Runaway 9/18/2007 1984 PG $15.50 1 Running Free 9/5/2006 2000 G $7.00 3 Running With Scissors 2/6/2007 2006 R TBD 2 RV 8/15/2006 2006 PG $7.00 3 S.W.A.T. 10/17/2006 2003 PG-13 $7.00 3 Saint Ralph 10/16/2007 2005 PG $7.00 3 School Daze 4/3/2007 1988 R $7.00 3 Second Chance, The 7/18/2006 2006 PG-13 TBD 2 Second in Command 5/2/2006 2006 R $7.00 3 Secret Window 10/3/2006 2004 PG-13 $7.00 3 Secrets of the Code 6/5/2007 2007 NR $7.00 3 See No Evil, Hear No Evil 6/5/2007 1989 R $7.00 3 Seeing Double 9/4/2007 2003 N/A $7.00 3 September Dawn 1/1/2008 2007 R $15.50 1 Seraphim Falls 5/15/2007 2007 R TBD 2 Seventh Sign, The 4/4/2006 1988 R $7.00 3 Shackles 8/7/2007 2005 R $7.00 3 Shadow Man 6/6/2006 2006 R $7.00 3 Shepherd, The: Border Patrol 3/4/2008 2008 R $15.50 1 Short Circuit 2 10/17/2006 1988 PG $7.00 3 Shottas 1/2/2007 2006 R $7.00 3 Shredderman Rules! 8/28/2007 2007 TV-Y7 TBD 2 Side Out 9/4/2007 1990 PG $7.00 3 Silent Hill 8/22/2006 2006 R $7.00 3 Single White Female 4/4/2006 1992 R $7.00 3 Single White Female 2: The Psycho 4/17/2007 2005 R $7.00 3 SLC Punk 1/16/2007 1999 R $7.00 3 Sleepless in Seattle 7/17/2007 1993 PG $7.00 3 Sleuth 3/11/2008 2007 R $15.50 1 Slipstream 2/26/2008 2007 R $15.50 1 Snatch 5/1/2007 2000 R $7.00 3 Sniper 11/7/2006 1993 R $7.00 3 Sniper 3 10/16/2007 2004 R $7.00 3 So I Married an Axe Murderer 4/4/2006 1993 PG-13 $7.00 3 Soccer Dog 8/21/2007 1999 PG $7.00 3 Soccer Dog: European Cup Now 2004 PG $7.00 3 Something's Gotta Give 2/6/2007 2003 PG-13 $7.00 3 Southland Tales 3/18/2008 2007 R $15.50 1 Spacehunter 9/18/2007 1983 PG TBD 2 Spanglish 6/6/2006 2004 PG-13 $7.00 3 Spider-Man 3/6/2007 2002 PG-13 $7.00 3 Spider-Man 2 4/4/2006 2004 PG-13 $7.00 3 Spider-Man 2.1 4/17/2007 2004 PG-13 TBD 2 Spider-Man 3 10/30/2007 2007 PG-13 $15.50 1 Squid and the Whale, The 4/4/2006 2005 R $7.00 3 Stand By Me 4/4/2006 1986 R $7.00 3 Starman 4/4/2006 1984 PG-13 $7.00 3 Starship Troopers 1/2/2007 1997 R $7.00 3 Stealing Harvard 6/20/2006 2002 PG-13 $7.00 3 Stealth 4/4/2006 2005 PG-13 $7.00 3 Steel Magnolias 3/20/2007 1989 PG $7.00 3 Steep 3/18/2008 2007 PG $15.50 1 Stella Street 4/3/2007 2004 R $7.00 3 Stephen King's Sleepwalkers 10/3/2006 1992 R $7.00 3 Still Crazy 12/19/2006 1999 R $7.00 3 Stomp the Yard 5/15/2007 2007 PG-13 TBD 2 41 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) Stranger Than Fiction 2/27/2007 2006 PG-13 TBD 2 Striking Distance 6/20/2006 1993 R $7.00 3 Striking Range Now 2006 TBD $7.00 3 Stripes 5/1/2007 1981 R TBD 2 Stuart Little 7/18/2006 1999 PG $7.00 3 Stuart Little 2 9/5/2006 2002 PG $7.00 3 Stuart Little 3: Call of the Wild 4/17/2007 2006 G $7.00 3 Sueno 4/4/2006 2005 PG-13 $7.00 3 Superbad 12/4/2007 2007 R $15.50 1 Surf's Up 10/9/2007 2007 PG $15.50 1 Surrender Dorothy 5/9/2006 2006 NR $7.00 3 Sweetest Thing, The 8/1/2006 2002 R $7.00 3 Swept Away 4/17/2007 2002 R $7.00 3 Tailor of Panama, The 8/21/2007 2001 R $7.00 3 Talladega Nights: The Ballad of Ricky Bobby 12/12/2006 2006 PG-13 TBD 2 Tao of Steve, The 5/1/2007 2000 R $7.00 3 Taxi Driver 4/4/2006 1976 R TBD 2 Tears of the Sun 5/2/2006 2003 R $7.00 3 Tekkon Kinkreet 9/25/2007 2006 R TBD 2 Tenants, The 2/20/2007 2006 R $7.00 3 Thank God It's Friday 12/19/2006 1977 PG $7.00 3 Thirteenth Floor, The 7/4/2006 1999 R $7.00 3 Thomas and the Magic Railroad 3/20/2007 2000 G $7.00 3 Three Burials of the Melquiades Estrada , The 6/6/2006 2006 R $7.00 3 Three Can Play That Game 2/12/2008 2008 R $15.50 1 Thumbsucker 4/4/2006 2005 R TBD 2 Today You Die 10/16/2007 2005 R $7.00 3 Tommy 2/20/2007 1975 PG $7.00 3 Tootsie 4/4/2006 1982 PG $7.00 3 Toy, The 6/5/2007 1982 PG $7.00 3 Trapped 3/20/2007 2002 R $7.00 3 Two Can Play That Game 2/6/2007 2001 R $7.00 3 Ultraviolet 6/27/2006 2006 PG-13 $7.00 3 Underworld 3/26/2007 2003 R $7.00 3 Underworld: Evolution 6/6/2006 2006 R $7.00 3 Universal Soldier: The Return 7/4/2006 1999 R $7.00 3 Until Death 4/24/2007 2007 TBD $15.50 1 Urban Justice 11/13/2007 2007 R $15.50 1 Vacancy 8/14/2007 2007 R TBD 2 Vampires: The Turning 4/17/2007 2005 R $7.00 3 Vertical Limit 7/3/2007 2000 PG-13 $7.00 3 Vitus 11/27/2007 2007 PG $15.50 1 Wah-Wah 11/21/2006 2005 R TBD 2 Walk on Water 1/16/2007 2005 R $7.00 3 Walking Tall: Lone Justice 9/25/2007 2007 R TBD 2 Walking Tall: The Payback 2/27/2007 2007 R TBD 2 Way We Were, The 9/18/2007 1973 PG $7.00 3 We Own the Night 2/12/2008 2007 R $15.50 1 Wedding Planner, The Now 2001 PG-13 $7.00 3 Whale Rider 5/15/2007 2003 PG-13 $7.00 3 What Planet Are You From? 8/1/2006 2000 R $7.00 3 When A Stranger Calls 5/16/2006 2006 PG-13 $7.00 3 Where The Truth Lies 4/4/2006 2005 R $7.00 3 White Chicks 6/20/2006 2004 PG-13 $7.00 3 White Countess, The 5/16/2006 2005 PG-13 $7.00 3 White Dragon 1/16/2007 2005 PG-13 $7.00 3 Who Killed the Electric Car? 11/14/2007 2006 PG $7.00 3 Why We Fight 6/20/2006 2006 PG-13 $7.00 3 Wild Things 8/1/2006 1998 R $7.00 3 Wild Things: Diamonds in the Rough 4/4/2006 2005 R $7.00 3 Wind Chill 9/4/2007 2007 R TBD 2 Wolf 7/17/2007 1994 R $7.00 3 XXX 5/2/2006 2002 PG-13 $7.00 3 42 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) XXX: State of the Union 4/4/2006 2005 PG-13 $7.00 3 Yellow 7/31/2007 2007 R TBD 2 Zathura Now 2005 PG $7.00 3 Zoom: Academy for Supeheroes Now 2006 PG TBD 2 Good Night, The 4/1/2008 2007 R $15.50 1 What Love Is 4/1/2008 2007 R $15.50 1 Water Horse, The: Legend of the Deep 4/8/2008 2007 PG $15.50 1 Walk Hard: The Dewey Cox Story (Rated) 4/8/2008 2007 R $15.50 1 Final Season, The 4/15/2008 2007 PG $15.50 1 Impulse 4/15/2008 2008 R $15.50 1 Loch Ness Terror 4/15/2008 2008 R $15.50 1 Diamond Dogs 4/29/2008 2007 R $15.50 1 Hero Wanted 4/29/2008 2008 TBD $15.50 1 Saawariya 5/6/2008 2007 PG $15.50 1 First Sunday 5/6/2008 2008 PG-13 $15.50 1 Cottage, The 5/13/2008 2008 UR $15.50 1 Untraceable 5/13/2008 2008 R $15.50 1 Cleaner 5/27/2008 2008 R $15.50 1 Take, The 5/27/2008 2008 R $15.50 1 50 First Dates 5/6/2008 2004 PG-13 $7.00 3 Absence of Malice 5/6/2008 1981 PG TBD 2 Annie 5/6/2008 1982 PG $7.00 3 Big Fish 5/6/2008 2003 PG-13 $7.00 3 Blue Thunder 5/6/2008 1983 R $7.00 3 Gandhi 5/6/2008 1982 PG TBD 2 Hanging Up 5/6/2008 2000 PG-13 $7.00 3 Hollow Man 5/6/2008 2000 R TBD 2 League of Their Own, A 5/6/2008 1992 PG $7.00 3 Look Who's Talking Too 5/6/2008 1990 PG-13 $7.00 3 Men in Black 2 5/20/2008 2000 PG-13 TBD 2 Midnight Express 5/20/2008 1978 R TBD 2 Mirror Has Two Faces 5/20/2008 1996 PG-13 $7.00 3 Mo' Money 5/20/2008 1992 R $7.00 3 Richard Pryor: Live on the Sunset Strip 5/20/2008 1982 NR $7.00 3 Roxanne 5/20/2008 1987 PG $7.00 3 Sense and Sensibility 5/20/2008 1995 PG $7.00 3 St. Elmo's Fire 5/20/2008 1985 R $7.00 3 Stir Crazy 5/20/2008 1980 R $7.00 3 You Got Served 5/20/2008 2004 PG-13 $7.00 3
EXHIBIT E
FUNCTIONALITY
1. SPT Movies used or exploited by Apple hereunder shall be made available on a pay per download basis, for which the end user will pay a fee (the “Download Fee.”)
2. Payment of the Download Fee will allow the end user to use the applicable Movie in accordance with the Content Usage Rules. All such downloads shall be authorized for use only by the applicable Online Store account holder as provided herein and in the Terms of Service and Content Usage Rules. SPT acknowledges and agrees that such downloads will, unless deleted by the user, remain on the end user’s Device after the expiration of the Term. APPLE acknowledges and agrees that, as a prerequisite for fulfilling Downloads from the Online Store, it shall require that the Customer’s Online Store account have a current and validated U.S.-based credit card on file, except in the case of an account opened with only a pre-paid gift card where
43 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) Movies were purchased by a Customer with a gift card.
3. If SPT discovers that an end user is violating the above-referenced computer/device limitations, then SPT shall provide APPLE with notice thereof. APPLE shall use reasonable efforts to cooperate and/or assist in SPT’s investigation or prosecution of such violations; provided that APPLE shall have no obligation to pursue litigation, incur outside counsel legal fees, or fund the cost of such investigation or prosecution.
44 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) EXHIBIT F
BRANDING AND MARKETING
Without limiting the generality of the Agreement, APPLE shall have the following rights, in its sole discretion: (i) to place SPT Content in areas of the Online Store consistent with the subject matter or other method of categorization of the SPT Content; and (ii) to promote SPT Content by way of so-called "bricks," “splashes” and newsletters.
The Parties shall work together to develop a marketing plan for SPT Content.
45 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) EXHIBIT G
ADVERTISING AND PROMOTION
1. SPT shall not have the right to insert cross-promotional content at the beginning or end of any Movie, provided that if APPLE distributes any feature length movies in the Territory from another content provider on a DHE basis that includes cross-promotional content, then SPT shall then be able to include such similar cross-promotional content in the Movies it makes available hereunder, for so long as APPLE distributes such other feature length movies with cross- promotional content.
2. APPLE shall not, without SPT’s prior written approval, insert any advertising or promotional material in any SPT Content.
46 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) EXHIBIT H
SECURITY SOLUTION
In addition to administering the Content Usage Rules, the Security Solution shall consist of the following:
1. Except as otherwise reasonably required by APPLE to perform its obligations under this Agreement, SPT Content shall reside on a network server, workstation or equivalent device owned or controlled by APPLE or its contractors, and shall be reasonably secured with restricted access. SPT Content shall be encrypted with its own unique key on the applicable server.
2. Any Movies distributed by APPLE pursuant to this Agreement shall be distributed solely in encrypted Format as described below. APPLE shall deliver a key to decrypt such Movies to the end user using Secure Socket Layer (“SSL”). A reasonable amount of the audio-visual portion of such Movies will be encrypted using AES-128 encryption, and secured to the end user’s key after purchase.
3. On a computer, an APPLE owned application shall store an end user’s keys in an encrypted format using AES-128 encryption, and the key to decrypt such key file will be known to APPLE owned applications and APPLE’s QuickTime software.
4. A key file shall contain a Global Unique ID (“GUID”), which may be an Ethernet MAC address for purposes of identifying the authorized computer and user account.
5. When access to the encrypted Movies is requested, the APPLE owned software or APPLE QuickTime software shall search the key file for the content key, and check so that the key file is associated with the authorized computer.
6. Removal of an end user’s keys de-authorizes a computer by removing the end user’s keys from the key file. APPLE will maintain and update a database when a computer is de- authorized.
7. APPLE may control the status of an end user’s authorized computers for purposes of customer support.
8. Movies transferred from a computer to a Device shall be in encrypted Format, and the end user’s keys shall be transferred and tied to such Device and stored in an encrypted key file. The key to decrypt the key file shall be known to both the APPLE owned software and the Device.
9. APPLE shall monitor activation and/or deactivation of authorized computers for purposes of monitoring compliance with the Content Usage Rules, and will take appropriate steps, in APPLE’s sole discretion, towards curing misuse of Movies.
47 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) 10. Output Protections:
(a) APPLE shall require, in the Territory, an HDCP connection to be established in order to display Movies over HDMI. For the avoidance of doubt, software updates to a Device shall not be deemed to create a new or next generation Device.
(b) As of the Effective Date, component analog outputs on Devices other than Macs or personal computers shall be protected with CGMS-A. Notwithstanding the foregoing, in the case of Devices with component analog outputs at 50 Hz, APPLE shall not be obligated to protect such analog outputs at the launch of Movies hereunder on the Online Store, but APPLE will use commercially reasonable efforts to update new Devices in order to protect outputs at 50 Hz. With respect to Macs and personal computers, APPLE shall, in good faith, investigate and explore implementing CGMS-A on analog outputs. If APPLE agrees with any Major Studio to implement CGMS-A on Macs and/or personal computers, then APPLE shall implement the same hereunder as it relates to Macs and/or personal computers.
(c) If any new or next generation Apple-branded Permitted Device manufactured on or after the Effective Date for distribution in the Territory has a new non-HDMI digital output and Apple does not require HDCP or similar protection to be established in order to display Movies over that digital output, then SPT shall have the right, at SPT’s option, to suspend or terminate Apple’s license to distribute Movies to that Permitted Device, and if Apple does not or cannot cease distribution of Movies to that Permitted Device, to suspend or terminate this Agreement and/or, at SPT’s option, a portion of the rights under this Agreement.
(d) If APPLE enters into agreements with Major Studios, as contemplated by Section 18(m) hereof, whereby APPLE agrees to implement content protection rules thereunder, that materially differ from those set forth herein, then (i) APPLE shall notify SPT in writing within thirty (30) days of implementing such different content protection rules (which notice shall describe the additional or different content usage rules in reasonable detail), and (ii) whether or not such notice is provided, SPT shall at any time have the right to have such additional and/or different content usage rules incorporated into this Agreement and applied with respect to SPT's Movies.
48 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) EXHIBIT J
MARKETING AND PROMOTION REQUIREMENTS
Without limiting any other provision hereof, APPLE shall market and promote the Movies in accordance with the following guidelines:
a. APPLE shall have the right to use or authorize the use of written summaries, extracts, synopses, photographs and trailers prepared and provided or made available by SPT or, if not prepared by SPT, approved in writing in advance by SPT (“Advertising Materials”), solely for the purpose of advertising, promoting and publicizing the exhibition of the Movies on the Online Store and the right to advertise, publicize and promote, or authorize the advertising, publicity and promotion of the exhibition of any Movie on the Online Store during the time periods and other restrictions specified herein. b. If SPT establishes a date prior to which no marketing or promotion may occur for any Movie (“Public Announce Date”), and such date is communicated to APPLE in writing (such as, by way of example, in any metadata) without conflict with any other written communications received by APPLE, then APPLE may not “pre-promote” such Movie, to include, without limitation: (a) solicit any pre-orders; (b) advertise referencing price or release date; or (c) use any title-related images or artwork. Violation of this provision shall constitute a material breach of this Agreement. If no Public Announce Date is so specified by SPT, APPLE shall not pre-promote any Movie more than 60 days prior to its release date unless otherwise directed by SPT (such as, by way of example, in any metadata) and in no event may APPLE promote any title prior to receiving an Availability Notice for such Movie; provided that SPT shall, upon delivery of any such Movie to APPLE, provide APPLE with an Availability Notice in the accompanying metadata for such Movie. The foregoing shall be no less favorable to APPLE than to any other DHE Provider.
c. Advertising prior to release date must provide notice of the release date in such ad (e.g., Available July 27); provided that such date is provided to APPLE by SPT prior to the commencement of such advertising. APPLE shall not promote any Movie after it is withdrawn from distribution hereunder by SPT; provided that APPLE receives notice thereof at least three (3) business days prior to the date which such Movie is to be withdrawn. d. The rights granted in this Exhibit J shall be subject to, and APPLE shall comply with, any and all restrictions or regulations of any applicable guild or union and any third party contractual provisions with respect to the advertising and billing of the Movie in accordance with such specific instructions as SPT may advise APPLE in writing prior to or concurrent with the delivery of applicable SPT Content or from time to time during the Term. e. Subject to the terms and conditions hereof, APPLE shall not, without the prior written consent of SPT, (a) modify, edit or make any changes to the Advertising Materials, or (b) promote the exhibition of any specific Movie by means of a contest or giveaway. f. The names and likenesses of the characters, persons and other entities appearing in or connected with the production of Movies shall not be used separate and apart from the 49 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) Advertising Materials which will be used solely for the purpose of advertising of the exhibition or availability of such Movies, and no such name or likeness shall be used so as to constitute an endorsement or testimonial, express or implied, of any party, product or service, by “commercial tie-in” or otherwise. APPLE shall not use SPT’s name or logo or any Movie or any part of any Movie as an endorsement or testimonial, express or implied, by SPT, for any party, product or service including APPLE, iTunes or any other service provided by APPLE. g. Within 30 calendar days after the day on which a Movie is withdrawn, APPLE shall, upon written request by SPT, destroy (or at SPT’S request, return to SPT) all Advertising Materials for such Movie which have been supplied by SPT hereunder. h. APPLE shall not knowingly and willfully discriminate against SPT Content on the Online Store with respect to similar content and shall not use SPT Content to denigrate any other form of movie distribution. i. The Parties acknowledge and agree that APPLE’s acceptance of, and ongoing substantial compliance with, the Marketing and Promotion Requirements set forth in Exhibit J are a material inducement to SPT’S entering into this Agreement.
50 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) EXHIBIT K
iTunes Store
TERMS OF SERVICE
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND APPLE INC. ("APPLE") STATING THE TERMS THAT GOVERN YOUR USE OF THE ITUNES STORE SERVICE. THIS AGREEMENT - TOGETHER WITH ALL UPDATES, ADDITIONAL TERMS, SOFTWARE LICENSES, AND ALL OF APPLE'S RULES AND POLICIES - COLLECTIVELY CONSTITUTE THE "AGREEMENT" BETWEEN YOU AND APPLE. TO AGREE TO THESE TERMS, CLICK "AGREE." IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK "AGREE," AND DO NOT USE THE SERVICE. YOU MUST ACCEPT AND ABIDE BY THESE TERMS AS PRESENTED TO YOU: CHANGES, ADDITIONS, OR DELETIONS ARE NOT ACCEPTABLE, AND APPLE MAY REFUSE ACCESS TO THE ITUNES STORE FOR NONCOMPLIANCE WITH ANY PART OF THIS AGREEMENT.
1. Definition of the iTunes Store Service. Apple is the provider of the iTunes Store (the "Service") that permits you to purchase downloads of digital content - such as sound recordings and videos - under certain terms and conditions as set forth in this Agreement.
2. Age requirements for use of the Service. This Service is available for individuals aged 13 years or older. If you are 13 or older but under the age of 18, you should review these terms and conditions with your parent or guardian to make sure that you and your parent or guardian understand these terms and conditions.
3. Objectionable Material. You understand that by using the Service, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language. Nevertheless, you agree to use the Service at your sole risk and that Apple shall have no liability to you for content that may be found to be offensive, indecent, or objectionable. Content types (including genres, sub-genres and Podcast categories and sub-categories and the like) and descriptions are provided for convenience, and you acknowledge and agree that Apple does not guarantee their accuracy.
4. System Requirements. Use of the Service requires a compatible device, Internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Service involves hardware, software, and Internet access, your ability to use the Service may be affected by the performance of these factors. High speed Internet access is strongly recommended. You acknowledge and agree that such system requirements, which may be changed from 51 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) time to time, are your responsibility. The Service is not part of any other product or offering, and no purchase or obtaining of any other product shall be construed to represent or guarantee you access to the Service.
5. Policies and Rules. Your use of the Service and purchases made through it are subject to Apple's Terms of Sale at http://www.apple.com/legal/itunes/us/sales.html, which can be readily viewed on the Service, and any end-user agreements or other terms and conditions required for use of the Service, all of which are hereby made a part of this Agreement. If you have not already read Apple's Terms of Sale, you should do so now.
6. Apple's Privacy Policy. Except as otherwise expressly provided for in this Agreement, the Service is subject to Apple's Privacy Policy at http://www.apple.com/legal/privacy/, which is expressly made a part of this Agreement. If you have not already read Apple's Privacy Policy, you should do so now.
7. Your Information. You agree to provide accurate, current, and complete information required to register with the Service and at other points as may be required in the course of using the Service ("Registration Data"). You further agree to maintain and update your Registration Data as required to keep it accurate, current, and complete. Apple may terminate your rights to any or all of the Service if any information you provide is false, inaccurate or incomplete. You agree that Apple may store and use the Registration Data you provide (including credit card and PayPal account information) for use in maintaining your accounts and billing fees to your credit card or PayPal account.
8. User Account and Security. a. Account and Password. As a registered user of the Service, you may receive or establish an account ("Account"). You are solely responsible for maintaining the confidentiality and security of your Account. You should not reveal your Account information to anyone else or use anyone else's Account. You are entirely responsible for all activities that occur on or through your Account, and you agree to immediately notify Apple of any unauthorized use of your Account or any other breach of security. Apple shall not be responsible for any losses arising out of the unauthorized use of your Account. b. Security. You understand that the Service, and products purchased through the Service, such as sound recordings, videos and related artwork ("Products"), include a security framework using technology that protects digital information and limits your usage of Products to certain usage rules established by Apple and its licensors ("Usage Rules"). You agree to comply with such Usage Rules, as further outlined below, and you agree not to violate or attempt to violate any security components. You agree not to attempt to, or assist another person to, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with any of the security components related to such Usage Rules for any reason whatsoever. Usage Rules may be controlled and monitored by Apple for compliance purposes, and Apple reserves the right to enforce the Usage Rules with or without notice to you. You will not access the Service by any means other than through software that is provided by Apple for accessing the Service. You shall not access or 52 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) attempt to access an Account that you are not authorized to access. You agree not to modify the software in any manner or form, or to use modified versions of the software, for any purposes including obtaining unauthorized access to the Service. Violations of system or network security may result in civil or criminal liability.
9. Purchase of Apple Content a. Products Requirements. You acknowledge that use of Products may require the use of other hardware and software products (e.g., the ability to make copies of Products on physical media and render performance of Products on authorized digital player devices), and that such hardware and software is your responsibility. Once a Product is purchased and you receive the Product, it is your responsibility not to lose, destroy, or damage the Product, and Apple shall be without liability to you in the event of any loss, destruction, or damage. b. Use of Products. You acknowledge that Products contain security technology that limits your usage of Products to the following Usage Rules, and you agree to use Products in compliance with such Usage Rules.
Usage Rules
Your use of the Products is conditioned upon your prior acceptance of the terms of this Agreement.
You shall be authorized to use the Products only for personal, noncommercial use.
You shall be authorized to use the Products on five Apple-authorized devices at any time.
You shall be entitled to export, burn (if applicable) or copy Products solely for personal, noncommercial use. You shall not be entitled to burn Video Products.
You shall be authorized to burn an audio playlist up to seven times.
You shall be able to store Products from up to five different Accounts on certain devices, such as an iPod, at a time.
Any burning (if applicable) or exporting capabilities are solely an accommodation to you and shall not constitute a grant or waiver (or other limitation or implication) of any rights of the copyright owners in any audio or video content, sound recording, underlying musical composition, or artwork embodied in any Product.
You agree that you will not attempt to, or encourage or assist any other person to, circumvent or modify any security technology or software that is part of the Service or used to administer the Usage Rules.
53 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) The delivery of Products does not transfer to you any commercial or promotional use rights in the Products. c. You agree that your purchase of Products constitutes your acceptance of and agreement to use such Products solely in accordance with the Usage Rules, and that any other use of the Products may constitute a copyright infringement. The security technology is an inseparable part of the Products. The Usage Rules shall govern your rights with respect to the Products, in addition to any other terms or rules that may have been established between you and another party. Apple reserves the right to modify the Usage Rules at any time. d. You acknowledge that some aspects of the Service, Products, and administering of the Usage Rules entails the ongoing involvement of Apple. Accordingly, in the event that Apple changes any part of the Service or discontinues the Service, which Apple may do at its election, you acknowledge that you may no longer be able to use Products to the same extent as prior to such change or discontinuation, and that Apple shall have no liability to you in such case e. The Service may offer interactive features that allow you to, among other things, submit or post information, materials or links to third party content on areas of the Service accessible and viewable by other users of the Service and the public. You represent and agree that any use by you of such features, including any information, materials or links submitted or posted by you, shall be your sole responsibility, shall not infringe or violate the rights of any other party or violate any laws, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene, objectionable or in poor taste, and that you have obtained all necessary rights, licenses or clearances. You further agree to provide accurate and complete information in connection with your submission or posting of any information or materials on the Service. Moreover, you hereby grant Apple a worldwide, royalty-free, non-exclusive license to use such materials as part of the Service, and in relation to Products, without any compensation or obligation to you.
Apple reserves the right not to post or publish any materials, and to delete, remove or edit any material, at any time in its sole discretion without notice or liability.
Apple has the right, but not the obligation, to monitor any information and materials submitted or posted by you or otherwise available on the Service, to investigate any reported or apparent violation of this Agreement, and to take any action that Apple in its sole discretion deems appropriate, including, without limitation, under Section 14 below or under our Copyright Policy (http://www.apple.com/legal/trademark/claimsofcopyright.html).
10. Territory. The Service is currently available only in the United States, and is not available in any other location. You agree not to use or attempt to use the Service from outside of the available territory, and that Apple may use technologies to verify your compliance.
54 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) 11. Agreement to Pay. a. Payment for Products. You agree to pay for all Products you purchase through the Service, and that Apple may charge your credit card or PayPal account for any Products purchased, and for any additional amounts (including any taxes and late fees, as applicable) as may be accrued by or in connection with your Account. YOU ARE RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING APPLE WITH A VALID CREDIT CARD OR PAYPAL ACCOUNT DETAILS FOR PAYMENT OF ALL FEES. All fees will be billed to the credit card, or the PayPal account, you designate during the registration process. If you want to designate a different credit card or if there is a change in your credit card or PayPal account status, you must change your credit card or PayPal account information online at the Account Info section of the Service. (There may be a temporary disruption of your access to the Service until Apple can verify the validity of the new credit card or PayPal account information.) b. Right to Change Prices and Availability of Products. Prices and availability of any Products are subject to change at any time. c. Electronic Signatures and Contracts. Your use of the Service includes the ability to enter into agreements and/or to make purchases electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND PURCHASES. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SITE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. d. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
12. Delivery of Products. On occasion, technical problems may delay or prevent delivery of your Product. Your exclusive and sole remedy with respect to Product that is not delivered within a reasonable period will be either replacement of such Product, or refund of the purchase price paid for such Product, as determined by Apple.
13. Intellectual Property. a. Acknowledgement of Ownership. You agree that the Service, including but not limited to graphics, audio clips, and editorial content, contains proprietary information and material that is owned by Apple and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary information or materials in any way whatsoever except for use of the Service in compliance with the terms of this Agreement. No portion of the Service may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in any manner, and you shall not exploit 55 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) the Service in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. b. Removal of Apple Content or Other Materials. Notwithstanding any other provision of this Agreement, Apple and its licensors reserve the right to change, suspend, remove, or disable access to any Products, content, or other materials comprising a part of the Service at any time without notice. In no event will Apple be liable for the removal of or disabling of access to any such Products, content or materials under this Agreement. Apple may also impose limits on the use of or access to certain features or portions of the Service, in any case and without notice or liability. c. Copyrights. All copyrights in and to the Service, including but not limited to, the iTunes Store (including the compilation of content, postings, links to other Internet resources, and descriptions of those resources), and software, are owned by Apple and/or its licensors. THE USE OF THE SOFTWARE OR ANY PART OF THE SERVICE, EXCEPT FOR USE OF THE SERVICE AS PERMITTED IN THESE TERMS OF SERVICE, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT. d. Trademarks. Apple, the Apple logo, iTunes, and other Apple trademarks, service marks, graphics, and logos used in connection with the Service are trademarks or registered trademarks of Apple Inc. in the U.S. and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Service may be the trademarks of their respective owners. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks. e. Album Cover Art. As an account holder of the Service in good standing, Apple may provide you with limited access to download certain album cover art for music stored in the iTunes Library of your iTunes application, subject to availability. Such access is provided as an accommodation only, and Apple does not warrant or endorse and does not assume and will not have any liability or responsibility for such album cover art or your use thereof. You may only access album cover art (to the extent available) for music for which you are the lawful owner of a legal copy. Album cover art is provided for personal, noncommercial use only. You agree that you will not use album cover art in any manner that would infringe or violate these Terms of Service or the rights of any other party, and that Apple is not in any way responsible for any such use by you.
14. Termination. a. Termination by Apple. If you fail, or Apple suspects that you have failed, to comply with any of the provisions of this Agreement, including but not limited to failure to make payment of fees due, failure to provide Apple with a valid credit card or with accurate and complete Registration Data, failure to safeguard your Account information, violation of the Usage Rules or any license to the software, or infringement or other violation of third parties' rights, Apple, at its sole discretion, without notice to you 56 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) may: (i) terminate this Agreement and/or your Account, and you will remain liable for all amounts due under your Account up to and including the date of termination; and/or (ii) terminate the license to the software; and/or (iii) preclude access to the Service (or any part thereof). b. Termination of the Service. Apple reserves the right to modify, suspend, or discontinue the Service (or any part or content thereof) at any time with or without notice to you, and Apple will not be liable to you or to any third party should it exercise such rights.
15. General Compliance with Laws. The Service is controlled and operated by Apple from its offices in the United States. You agree to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to your use of the Service.
16. Enforcement of These Terms. Apple reserves the right to takes steps Apple believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement (including but not limited to Apple's right to cooperate with any legal process relating to your use of the Service and/or Products, and/or a third party claim that your use of the Service and/or Products is unlawful and/or infringes such third party's rights). You agree that Apple has the right, without liability to you, to disclose any Registration Data and/or Account information to law enforcement authorities, government officials, and/or a third party, as Apple believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement (including but not limited to Apple's right to cooperate with any legal process relating to your use of the Service and/or Products, and/or a third party claim that your use of the Service and/or Products is unlawful and/or infringes such third party's rights).
17. No Responsibility for Third-Party Materials or Web sites. Certain content, Products, and services available via the Service may include materials from third parties. In addition, Apple may provide links to certain third party Web sites. You acknowledge and agree that Apple is not responsible for examining or evaluating the content or accuracy of any such third-party material or Web sites. Apple does not warrant or endorse and does not assume and will not have any liability or responsibility for any third-party materials or Web sites, or for any other materials, products, or services of third parties. Links to other Web sites are provided solely as a convenience to you. You agree that you will not use any third-party materials in a manner that would infringe or violate the rights of any other party, and that Apple is not in any way responsible for any such use by you.
18. Disclaimer of Warranties; Liability Limitations. a. APPLE DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME APPLE MAY REMOVE THE SERVICE FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SERVICE AT ANY TIME, WITHOUT NOTICE TO YOU. b. YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SERVICE IS AT 57 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) YOUR SOLE RISK. THE SERVICE AND ALL PRODUCTS AND SERVICES DELIVERED TO YOU THROUGH THE SERVICE ARE (EXCEPT AS EXPRESSLY STATED BY APPLE) PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU. c. IN NO CASE SHALL APPLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF ANY OF THE SERVICES OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, APPLE'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. d. APPLE SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE SERVICES, BUT YOU ACKNOWLEDGE AND AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND APPLE HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY. e. APPLE DOES NOT REPRESENT OR GUARANTEE THAT THE SERVICE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND APPLE DISCLAIMS ANY LIABILITY RELATING THERETO. YOU SHALL BE RESPONSIBLE FOR BACKING UP YOUR OWN SYSTEM, INCLUDING ANY PRODUCTS PURCHASED FROM THE ITUNES STORE THAT ARE STORED IN YOUR SYSTEM.
19. Waiver and Indemnity. BY USING THE SERVICE, YOU AGREE TO INDEMNIFY AND HOLD APPLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE SERVICE, OR ANY ACTION TAKEN BY APPLE AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM APPLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS AS A RESULT 58 Sony Pictures Television, Inc. –W- Apple Inc. (Movie DHE) (4.28.08) OF ITS DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE SERVICE, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF APPLE'S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.
20. Changes. Apple reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms, or conditions on your use of the Service. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in this Agreement as "Additional Terms") will be effective immediately and incorporated into this Agreement. Your continued use of the iTunes Store following will be deemed to constitute your acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this Agreement by this reference.
21. Notices. Apple may send you notice with respect to the Service by sending an email message to the email address listed in your Apple Account contact information, by sending a letter via postal mail to the contact address listed in your Apple Account contact information, or by a posting on the iTunes Store. Notices shall become effective immediately.
22. Governing Law. The laws of the State of California, excluding its conflicts of law rules, govern these Terms and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws. You expressly agree that exclusive jurisdiction for any claim or dispute with Apple or relating in any way to your use of the Service resides in the courts of the State of California.
23. Miscellaneous. These Terms of Service constitute the entire agreement between you and Apple and govern your use of the Service, superseding any prior agreements between you and Apple. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software. If any part of these Terms of Service is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Apple's failure to enforce any right or provisions in these Terms of Service will not constitute a waiver of such provision, or any other provision of these Terms of Service. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the other provisions will remain in full force and effect. Apple will not be responsible for failures to fulfill any obligations due to causes beyond its control.
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