ASSIGNMENT THIS ASSIGNMENT BETWEEN … LAN, intranet, extranet or wire or fibre-optic-based network...

ASSIGNMENT THIS ASSIGNMENT is made the _______ day of _________200__ BETWEEN:- (1) S4C of Parc Ty Glas, Llanishen, Cardiff, CF14 5DU (“S4C”) which expression shall

include its successors assigns and Group Companies; and (2) [ ] of [ ] (“the Producer”) RECITALS (A) S4C has published guidelines on the reassignment to the original production entity of

certain rights in qualifying programmes. These guidelines are available here. (B) The Producer has requested a Reassignment in respect of the Programme and S4C

has agreed to the Reassignment on the terms of this Assignment. AGREEMENT In consideration of S4C agreeing to reassign the Reassigned Rights to the Producer it is agreed as follows:- 1. Definitions and Interpretation In this Assignment the following words shall have the following meanings:- “Appendix”: the appendix or appendices to this Assignment. Where S4C has agreed to a Reassignment in relation to more than one Programme, an appendix will be attached for each one; “Clip Rights”: i) the right to use Clips and Rushes in new programmes made for the S4C Services and to exploit such programmes and all parts thereof (including such Clips and Rushes) in all media and by all manner and means now known or hereafter invented for the period of Copyright and without further payment to the Producer or any third party unless the contrary is agreed in the Clips and Rushes Policy; and ii) the right to use Clips and Rushes in promotional material and on websites and other New Media as set out in this Assignment; “Clips”: Clips from the Programme as delivered to S4C;

TAC Re-assignment. Vers 1 .2006 1

http://www.s4c.co.uk/production/downloads/e_adaseiniad_hawliau.pdf

“Clips and Rushes Policy”: the Clips and Rushes Policy agreed between S4C and TAC as reviewed annually and published on their respective websites here and which includes the fees payable for the use of Clips and Rushes; “Commissioning Agreement”: the agreement between S4C and the Producer by which S4C commissioned the Producer to make the Programme, details of which are in the Appendix; “Confidential Information”: any information regarding the business, suppliers or customers of either party and the terms of this Agreement and / or the Existing Licences and / or the Third Party Agreements together with any information which has been designated as confidential by either party in writing or that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) including information which relates to the affairs, property, assets, trading practices, developments, trade secrets, intellectual property rights, know-how of either party and all personal data within the meaning of the Data Protection Act 1998; “Delivery Materials”: shall have the meaning set out in the Commissioning Agreement; “DPRS”: the Directors’ and Producers’ Rights Society; “Educational Rights”: the right to allow designated libraries and archives (in accordance with the Copyright Design and Patents Act 1988 (as amended)) to prepare and keep copies of the Programme; to permit schools, colleges, universities, other educational establishments, museums, heritage centres, historical societies and charitable or other ‘non-commercial’ bodies to have copies of the Programme and to exhibit and use them for the educational or archival purposes of those organisations, and the right for S4C to use the Programme and all parts thereof in all media now known or hereafter invented for the purpose of providing services and facilities for Welsh learners and for other educational purposes. “English Language Rights”: the right to Exhibit the Programme with English language elements including soundtracks, subtitles, audio description interactivity and graphics but providing that is done as an adjunct to the Exhibition of the Programme in the Welsh language and not as a stand alone English language Exhibition; “ERA Rights”: the sole and exclusive right to allow the Educational Recording Agency Limited to licence educational establishments to record the Programme off-air and to use it for educational purposes in accordance with the licensing scheme operated by the ERA from time to time pursuant to Section 35 of the Copyright, Designs and Patents Act 1988 (as amended) and the right to retain all income derived therefrom. “Existing Licences”: all existing licences and arrangements whether written or oral between S4C and a third party or parties in respect of the Programme (details of which are set out in the Appendix) and any renewals thereof and extensions thereto;


“FOIA”: means the Freedom of Information Act 2000 and any subordinate legislation made under that act from time to time together with any guidance and/or codes of practice issued by the Information Commissioner in relation to such legislation; “Group Companies”: any subsidiary or holding company and any subsidiary of such holding company (and “holding company” and “subsidiary” are defined in Sections 736 and 736A of the Companies Act 1985); “Holdback”: the holdback described in Clause 5 which unless extended in accordance with Clause 5.2 or otherwise specified in the Appendix, shall apply prior to the first broadcast of the Programme (and all episodes of it) by S4C and expire on expiry of five (5) calendar years from the first broadcast of the Programme or (where the Programme is a series) the broadcast of the last episode whichever is the later. The date of first broadcast is noted in the Appendix; “Information”: has the meaning given under section 84 of the FOIA; “Information Commissioner”: the information commissioner appointed under the FOIA; “IPTV”: a system for distributing television programme services and/or services in digital format only by means of IP (Internet Protocol) or DSL (Digital Subscriber Line) multicast closed network subscription television distribution system; “Merchandising Rights”: the right to exploit the merchandising rights in the Programme including the programme format, Underlying Rights Material, characters, scenes, logos and designs in connection with all types of products including audio products, audio visual products, character merchandising, books, magazines and other publishing material; “Music Publishing Rights”: the sole and exclusive right to exploit all music contained in the Programme the copyright in which has been assigned to S4C under the Commissioning Agreement and/or pursuant to a contract between S4C and the composer and the sole and exclusive right to retain all income derived from such exploitation; “New Media Rights”: the right for S4C (and any third party new media service, portal or content providers as S4C may licence from time–to-time) to exploit the Programme and the S4C Content whether on a stand-alone basis or as part of any other service or portal in the following manners: i) Online: by communicating and making available to the public in the unrestricted

manner of a copyright owner the S4C Content by all online means now known or hereafter invented including (but without limitation) via the internet or any other WAN, LAN, intranet, extranet or wire or fibre-optic-based network (whether operating on a broadband or narrowband basis) and regardless of the means of transmission format or transmission technology employed, such as IPTV, DSL or otherwise and whether linear or interactive ; and


ii) Wireless: by communicating exploiting and making available to the public in the unrestricted manner of a copyright owner the S4C Content by all wireless technologies now known or hereafter invented including (without limitation) GSM, GPRS, 2.5 and 3G, DAB, DVB-H, T-DMB or otherwise and whether linear or interactive.

The foregoing rights shall also: • be exercisable regardless of whether the S4C Content is exploited by means of

streaming (simultaneous with other broadcast or not) to the relevant receiving devices or by recording or downloading (and in this regard S4C and its licensees shall have the right to authorise the public to record, download, store, reformat, copy and retain the S4C Content);

• be exercisable regardless of the commercial method or retail model of providing the content, service or portal of which the S4C Content may form part, to the public, which may be on any pay or free basis, including periodic subscription, video-on-demand, near or subscription video-on-demand, pay-per-view, pay-per-download or otherwise;

• include exploitation of the S4C Content on and via any systems combining online and wireless elements, whether now known or hereafter invented, such as (without limitation) systems using wire or fibre-optic lines culminating in terminal wireless relays, such as WiMax and WiFi, to end-users.

• include the right to perform all such technical evolutions as are necessary to enable the full exploitation by S4C of the New Media Rights (for example to copy, transfer, cache, store and reformat the Programme);

• include the right to deal with the Programme to accommodate the on-screen presentation of the new media services/portals through which exploitation is to be made (for example to add overlay, banner ads, links and task/navigation/menu/tool bars and wraps to the Programme as it appears on-screen);

• include the right to cut, edit, reformat, resize and repackage the Programme itself as may be necessary to adapt it to the particular new media in question;

• include the right to include the Programme and excerpts from it in any navigation systems, “tasters”, promos and free offers offered by S4C or any portal/service operator and the right to add such metadata as necessary;

• include all associated sponsorship advertising and promotional rights in whatever media;

• include the right to edit/truncate credits; and • include the right to use the names, images, voices, likenesses of the characters

appearing in the Programme for the above purposes.

“New S4C Channel”: any channel or television service established following the date of this Assignment and owned solely or mainly by S4C or any Group Company of S4C which is a [public television service primarily in the Welsh language and] targeted at a UK audience (notwithstanding that where such service is delivered by satellite the satellite footprint may be wider than the UK) [and which is available free of charge to the public (except for any costs payable by subscribers of satellite or cable television services


for supplying channels by means of satellite or cable television but where the subscribers do not pay a higher fee or price for the programmes broadcast)]; “Non Theatric Rights”: the right to show the Programme and/or authorise others to do so for screening before an audience by institutions or organisations not primarily engaged in the business of exhibiting motion pictures to the public including cultural social and religious institutions, businesses, civic organisations, hospitals; “Private Copies Code of Practice”: the code of practice agreed between TAC and S4C and as updated from time to time. A copy of the code of practice can be found here. “Producer Gross Income”: all revenue received by the Producer its agents and distributors from the exercise of the Reassigned Rights; “Producer Net Proceeds”: Producer Gross Income, less the total of the following:

(i) commission payable to the Producer its agents and distributors in respect of

the Programme which shall not in the aggregate exceed the following as a percentage of Producer Gross Income:

TV 35% Inflight / Footage 35% Video and DVD 25% Merchandising 35% Publishing 30%

(ii) the proper costs of selling the Programme including the costs of prints,

brochures, VHS tapes, launch and other promotional activities, panels, posters, freight and transport, Repeats and Residual Payments and the costs of technical and other work reasonably necessary to adapt the Programme for Exploitation which costs shall not in the aggregate exceed 5% of Producer Gross Income;

“Programme”: the programme (s) listed in the Appendix and any other language version of the Programme or any adaptation or revised version of it in any language including without limitation any programme or series containing or incorporating the same programme material or content (whether in the same or a different order or arrangement) and any programme based on the same format as the Programme and/or which is otherwise derived from the Programme and/or its production and / or the Rushes; “Promotional Rights”: the sole and exclusive right to promote, market and advertise the Welsh Version of the Programme and S4C’s exploitation of it and to use it in corporate marketing by all customary means or methods now known or invented in the future, including by:

i) means of trailers or on-screen promotions (and the right to use Clips and Rushes in such trailers or promotions);


ii) preparing and releasing summaries of the Programme to the press along with articles and other material about the Programme, or individuals contributing to the Programme;

iii) radio advertisements, posters, pamphlets, post cards; iv) exhibiting clips or extracts from the Programme in public, e.g. in public meetings or exhibitions, in film or television festivals, on S4C’s stand at events, e.g. at eisteddfodau or international matches; v) exhibiting the Programme and/or Clips and/or Rushes via New Media; vi) preparing corporate tapes or disks/showreels and similar corporate materials or products (e.g. CD-ROMs or DVDs) (and the right to use Clips and Rushes in any

such corporate materials); vii) holding premieres or theatrical exhibitions of the Programme; viii)[nominating the Programme for film or television awards or otherwise to submit it for exhibition or for an award at any film or television festival;] ix) exercising the Merchandising Rights;

“Quarter”: a period of 3 calendar months ending on 30 June, 30 September, 31 December or 31 March in any calendar year from the date of this Assignment; “Reassignment”: the reassignment to the Producer of the Reassigned Rights; “Reassigned Rights”: subject always to the Holdback, the copyright in the Programme the Rushes and the Underlying Rights Material and all exploitation rights in the Programme and the Underlying Rights Material other than the Reserved Rights which are expressly and irrevocably reserved to S4C for the Term; “Renewal Rights”: the sole and exclusive right to renew Existing Licences and to amend them so as to authorise the exploitation of the Programme in other formats (for example extending a video licence to include dvds); “Repeats and Residual Payments”: repeat residual and re use fees and royalties payable by S4C in accordance with the Commissioning Agreement in respect of the exercise of the Reserved Rights or payable by the Producer or its sublicensees in respect of the exercise of the Reassigned Rights; “Reserved Rights”: the exclusive right during the Holdback and (unless the right is expressed in these definitions or elsewhere in this Assignment to be exclusive in which case it shall continue to be exclusive) the non-exclusive right for the remainder of the Term to exploit the Welsh version of the Programme and all parts of it (including the soundtrack) in the manner of a copyright owner by any and all means in all media now known or hereafter invented whether analogue or digital, linear or interactive, online, offline or wireless and including;

i) the Transmission Rights and the New Media Rights ii) the Promotional Rights; iii) the Sequel Rights;


iv) the Retransmission Rights; v) the ERA Rights; vi) the English Language Rights; vii) the Educational Rights; viii) the Music Publishing Rights; ix) the Merchandising Rights; x) the Theatric Rights; xi) the Non-Theatric Rights; xii) ownership of and title absolute in the Delivery Materials; xiii) the Renewal Rights; xiv) the Clip Rights; xv) the Website Rights; xvi) all other incidental rights required by S4C in order to fulfil

or facilitate its statutory duties and responsibilities including the right to retain a broadcast copy of the Programme in perpetuity, the right to retain copies of the Programme in various technical formats to enable S4C to prepare different versions of the Programme e.g. a dual language version, a signed version, a subtitled version, an audio described version etc;

xvii) the right to assign and/or sub – licence and/or authorise others to exercise the Reserved Rights.

“Retransmission Rights”: the sole and the exclusive right to permit third party channels to include the Programme in their programme services (regardless of the platform used and whether within or outside the Territory) where such service(s) simultaneously broadcast all or part of the content of the S4C Services or any of them and the sole and exclusive right to retain all income derived therefrom; “Rushes”: material (other than music in which the copyright is owned by S4C) produced in the course of producing the Programme but not used in the Programme as delivered to S4C; “S4C Analogue”: the analogue television service ‘S4C’; “S4C Content”: the Programme and the format on which it is based and/or any part of part thereof;

“S4C Digital”: the digital television service ‘S4C Digidol’ which commenced broadcasting on 15th November 1998;

“S4C2”: the digital television service established by S4C2 Cyf, a Group Company of S4C; “S4C Gross Income”: income received by S4C from the exercise of the Merchandising Rights, the Theatric Rights. the Non Theatric Rights, the Renewal Rights and the New


Media Rights but excluding income derived from the exercise of the remainder of the Reserved Rights, to which S4C shall be solely and exclusively entitled; “S4C Net Proceeds”: S4C Gross Income less all commission costs and expenses incurred in generating the S4C Gross Income; “S4C Services”: S4C Analogue, S4C Digital, S4C2 and any New S4C Channel; “Sequel”: a sequel, remake or prequel, programme or series which is based on or contains elements from the Programme or the format for the Programme whether such sequel is temporally prior to, concurrent with or subsequent to the events portrayed in the Programme; “Sequel Rights”: the right to make or commission a Sequel; “TAC Archive Policy”: the TAC selection storage and archive policy relating to programmes made for S4C which policy has been prepared by TAC in consultation with S4C. A copy of the TAC Archive Policy is available here. “Term”: in perpetuity; “Territory”: the UK provided that it is recognised by the Producer that:-

(i) (as a result of the inherent inability of non-encrypted satellite signals to be confined to national borders) transmissions of the S4C Services shall be capable of reception throughout the footprint of Astra 2A or of such other satellite(s) via which the S4C Services are transmitted from time to time; and

(ii) the Reserved Rights include certain retransmission rights outside the Territory;

(iii) there is overspill outside the Territory from the analogue and digital transmitters serving Wales and from other methods of exercise of the Reserved Rights including via New Media;

none of which shall amount to an infringement by S4C of the Reassigned Rights;

“Theatric Rights”: the right to show the Programme in public by any manner or means in any medium to an audience which has paid for admission to the place where the Programme is to be seen; “Third Party Agreements”: any and all agreements entered into directly by S4C with any third party in respect of the Programme including any contributor (s) to the Programme or owners of third party material on which the Programme is based or which is incorporated into the Programme details of which are contained in the Appendix;


http://www.s4c.co.uk/production/downloads/e_polisi_dethol_ac_archifo.pdf

“Transmission Rights”: the sole and exclusive right during the Holdback and thereafter the non exclusive right to broadcast, exhibit and transmit the Programme and all parts thereof on the S4C Services by all means of television now known or hereafter invented whether analogue or digital, linear or interactive, online or wireless and including by terrestrial, cable and satellite means; “Underlying Rights Material”: any material on which the Programme is based the copyright and other rights in which are vested in S4C by virtue of the Commissioning Agreement or preceding development agreement or by a contract directly between S4C and a contributor but expressly excluding the copyright and all other rights in music originally commissioned for the Programme, all of which rights remain vested absolutely in S4C; “Website Rights”: the right to establish adapt and update a Welsh Language or bilingual programme related website (s) for the Programmes and to use Clips and Rushes on the same and/or on any corporate or generic or Welsh learners’ website which is branded that of S4C; “Working Day”: any day other than a Saturday, Sunday or public holiday.

1.2 Any reference to any statute or statutory provision shall be construed as including

a reference to that statute or statutory provision as from time to time amended modified extended or re-enacted whether before or after the date of this Assignment and to all statutory instruments orders and regulations amending, modifying and/or extending such statute or provision.

1.3 Unless the context otherwise requires words denoting the singular shall include

the plural and vice versa and words denoting any one gender shall include all genders and words denoting persons shall include bodies corporate unincorporated associations and partnerships and vice versa.

1.4 The subject headings to the Clauses of this Assignment are for guidance only and

are not intended to limit or restrict the wording of any Clause. 1.5 Where the Producer consists of more than one legal person or entity then the

liability of each such person and entity for the performance and observance of the Producer’s obligations warranties and undertakings under the Assignment shall be joint and several.

1.6 “Including” means “including without limitation”. 2. Assignment 2.1 To the extent that the same vested in S4C pursuant to the Commissioning Agreement but not otherwise S4C hereby assigns the Reassigned Rights to the


Producer. 2.2 The Reassignment is subject to the Reserved Rights, the Holdback, the Existing

Licences, the Third Party Agreements and the terms and conditions of this Assignment. The Reserved Rights are reserved solely and exclusively to S4C in the Territory and throughout the Term.

2.3 S4C gives no warranty or undertaking whether express or implied in relation to

the Reassigned Rights nor their adequacy nor the ability of the Producer or its sub-licensees to exercise them nor as to the availability of technical materials or Rushes. The exploitation of the Reassigned Rights and the payment and administration of repeats, residuals and similar payments shall be at the expense and risk of the Producer and the Producer shall indemnify S4C in accordance with Clause 20 against all liability arising from the same.

3. Reserved Rights 3.1 S4C shall be entitled to exercise the Reserved Rights without restriction for the

Term. During the Holdback the Reserved Rights shall be solely and exclusively reserved to S4C. Following expiry of the Holdback the Reserved Rights shall become non-exclusive except where stated in the definitions or elsewhere in this Assignment to be sole and exclusive.

3.2 In the exercise of the Reserved Rights S4C shall pay Repeats and Residual

Payments but shall not otherwise be liable to make any further payment to the Producer or any third party except as stated in the Clips and Rushes Policy.

4. The Commissioning Agreement 4.1 Except as expressly amended by this Assignment the Commissioning Agreement

shall continue with full force and effect provided that, in the event of a conflict between the Commissioning Agreement and this Assignment, this Assignment shall prevail.

4.2 All warranties undertakings and agreements on the part of the Producer contained

in the Commissioning Agreement are hereby affirmed as at the date hereof as if they were set out in full in this Assignment.

5. The Holdback


5.1 The Producer warrants undertakes and agrees that it shall not during the Holdback exploit licence authorise or permit the exploitation of the Programme (or any part of it including Clips and Rushes) or of the Sequel Rights in the Territory by any manner or means or in any media now known or hereafter invented. Such holdback shall apply (without limitation) to transmissions or other exhibition of the Programme which are or may be capable of reception in the Territory.

5.2 S4C may at any time during the initial Holdback extend the Holdback by an

additional two (2) years upon payment of a fee in accordance with the Fees Tables.

5.3 Following expiry of the Holdback, the Producer shall not licence any rights

whatsoever to any broadcaster or third party channel whose service is capable of reception on any platform in the Territory nor exploit or authorise the exploitation of the New Media Rights in any part of the world without the prior written consent of S4C. S4C shall not unreasonably withhold consent.

6. Merchandising Rights 6.1 Although in the exercise of the Merchandising Rights S4C may generate S4C Net

Proceeds, that is secondary to its main purpose which is to add value to the viewers’ experience of watching the Programme, to promote the Programme and the S4C Services and to meet the expectations of viewers that Programme related products will be made available.

6.2 Notwithstanding the expiry of the Holdback the Merchandising Rights shall

continue to be exclusive to S4C in respect of the products authorised by the Existing Licences or which have been produced by or on behalf of S4C prior to the date of this Assignment. Where a licensee under an Existing Licence wishes to extend the Existing Licence to cover additional formats (e.g. a video licencee wishes to produce a dvd) or to renew the term of the Existing Licence S4C shall be entitled to authorise that on an exclusive basis and as many time as it wishes. The terms on which it does so (including the Producer’s share if any of S4C Net Proceeds) shall be negotiated in good faith between the Producer and S4C and, pending agreement, the S4C Net Proceeds shall be retained by S4C.

6.3 S4C and the Producer shall liaise with one another prior to exploiting the

Merchandising Rights to ensure that their plans do not infringe any rights already granted to third parties.

6.4 In exercising the Merchandising Rights the Producer warrants, undertakes and

agrees that it shall adhere to the approvals process as published and updated by S4C from time to time. The current approvals process can be found here.

7. Requests for Private Copies


http://www.s4c.co.uk/production/downloads/guidelines/e_tariffau_ymestyn_trwydded.pdf

http://www.s4c.co.uk/production/downloads/guidelines/e_tariffau_ymestyn_trwydded.pdf

Requests from members of the public for copies of the Programme for private viewing shall be referred by S4C to the Producer. The Producer warrants agrees and undertakes that it shall deal with such requests in accordance with the Private Copies Guidelines. 8. Theatric and Non Theatric Rights 8.1 On expiry of the Holdback S4C and the Producer shall liaise with one another in

advance of any exercise of the Theatric Rights or Non Theatric Rights and take one another’s views into account. In the event that both the Producer and S4C wish to exercise or authorise the exercise of the Theatric Rights or the Non-Theatric Rights at the same venue then S4C’s decision shall prevail.

8.2 Net Proceeds from exercise of the Theatric Rights shall be shared in accordance

with Clause 17.1. 8.3 In exercising the Theatric Rights, S4C and the Producer shall apply the following

principles:-

8.3.1 where the audience is charged a fee, Clause 8.2 shall apply; 8.3.2 where the exercise of the Theatric Rights is in support of a registered

charity or good cause no licence fee will be charged notwithstanding that the audience may be charged a small administrative charge for entry;

8.3.3 entries in cultural events such as film festivals and official previews shall

be without cost to the organisers. 9. Credits 9.1 S4C will give the Producer a credit in any promotional or marketing material

published by or on S4C’s behalf in relation to the Programme to the extent that in S4C’s opinion this is reasonably practicable.

9.2 The Producer will ensure that in exercising the Reassigned Rights it and its

licensees and assigns shall accord S4C a credit on all products, packaging, publicity and other materials produced and on all transmissions of the Programme, such credit to be in a form approved by S4C’s Publications Manager.

10. Access to Paperwork and other material


10.1 In the event that the Producer has not retained copies of the paperwork originally forming part of the Delivery Materials, S4C shall (to the extent that it has retained easily locatable copies and subject to reaching agreement with the Producer as to any costs that are involved) provide copies to the Producer as soon as practicable following a request.

10.2 At the Producer’s request and cost (including the cost of administrative time) S4C

shall make available such technical material (including duplicate tapes and subtitles) as are available. This is without prejudice to S4C’s rights and remedies under the Commissioning Agreement in the event that the Producer has failed to keep a safety copy of the Programme at a suitable location.

11. TAC Archive Policy The Producer warrants agrees and undertakes:- 11.1 to apply the TAC Archive Policy to the Programme; 11.2 that it shall not destroy or authorise the destruction of any tapes or other original

materials relating to the Programme (including the master tapes, paperwork and rushes) without S4C’s prior written consent.

11.3 In the event that in S4C’s opinion the Producer is in breach of this Clause S4C

may by notice in writing require the Producer to forthwith deliver to S4C all original materials and documentation and/or copies thereof which are specified in the notice.

12. Sequel Rights 12.1 The Sequel Rights are reserved solely and exclusively to S4C during the

Holdback and, subject to the remainder of this Clause, shall upon expiry of the Holdback become non-exclusive;

12.2 If S4C decides to commission a Sequel it shall notify the Producer which shall

have seven (7) days from the date of the notification to notify S4C in writing whether it wishes to produce the Sequel. A twenty eight (28) day negotiation period (calculated from the date of S4C’s receipt of the Producer’s notification) shall follow. In the event that S4C and the Producer have not agreed all of the terms of the proposed commission within such twenty eight (28) day period or S4C does not receive notification from the Producer within the required seven (7) days S4C shall be free to award the commission to a third party or parties. In the event that either S4C’s tendering policy or the law relating to public procurement change so as to conflict with this Clause, this Clause shall be deemed deleted and ineffective.


http://www.s4c.co.uk/production/downloads/e_polisi_dethol_ac_archifo.pdf

12.2 The Producer shall not exercise the Sequel Rights during the Holdback. After

expiry of the Holdback it shall not do so in any language without notifying S4C in writing of its intention to do so in sufficient detail as to enable S4C to decide if it wishes to be involved with such Sequel. The Producer shall provide such additional detail as S4C may subsequently request;

12.3 Following receipt of notification under Clause 12.3 S4C shall have a period of

fourteen (14) Working Days to notify the Producer in writing whether it has an interest in co-funding the Sequel or in reversioning the Sequel into Welsh on its completion;

12.4 If following the expiry of such period of fourteen (14) Working Days the

Producer has not received such notification it shall (subject to Clause 12.6) be entitled to proceed with the Sequel without S4C’s involvement.

12.5 Where S4C notifies the Producer that it does not wish to participate in the funding

or reversioning of the Sequel (or it is deemed under Clause 12.5 not to wish to do so) the Producer shall not be entitled to proceed with a Sequel until S4C has approved the form of a credit in favour of S4C to appear on the Sequel, a share of Producer Net Proceeds from the Sequel to be paid to S4C and any other arrangements relating to the Sequel and its exploitation which S4C deems relevant.

12.6 If during such period of fourteen (14) days S4C does serve such notification upon

the Producer, the Producer shall not proceed with the pre-production or production of the Sequel unless and until terms have been agreed between them as to the funding, editorial content and key personnel and production for and of the Welsh language version of the Sequel and as to holdbacks (including whether the Holdback should be reactivated in respect of the Programme and all previous series of it so as to expire at the same time as the holdback for the Sequel);

13. Clips and Rushes 13.1 During the Holdback, the Producer shall (subject to S4C’s prior written

agreement) be entitled to use Clips and Rushes not exceeding thirty seconds in length the Clips and Rushes in total being no longer than 10% of the true length of the Programme or 5 minutes in total whichever is the shorter on its website in order to promote its own business ;

13.2 Subject to the Producer (or its assignee which has been approved by S4C in

writing) still being in existence, exercise of the Clip Rights by S4C or its suppliers shall be subject to the approval of the Producer. Such approval shall not be required where the Clip Rights are being exercised in conjunction with the Promotional Rights. Exercise of the Clip Rights in conjunction with the


Promotional Rights shall be free of charge in respect of Clips and subject to a charge (if any) to be negotiated in respect of Rushes.Requests for approval shall be directed to the person named in the Appendix or such other person as the Producer may notify to S4C in writing from time to time. Approval shall not be withheld or delayed without good cause (e.g. that the Clip contains third party copyright material which cannot be cleared). If no response is received within five (5) Working Days of the date of any request for approval, approval shall be deemed given.

13.3 In the event that the Producer withholds consent to the use of any Clips or Rushes

in a new programme for S4C either the Producer or the supplier of the new programme shall be entitled to refer the dispute to the S4C commissioning editor for such new programme in the first instance. If the commissioning editor cannot resolve the dispute either the Producer or the supplier of the new programme shall have the right to refer the matter to the S4C Director of Commissioning. If the dispute is still not resolved it shall be referred to S4C’s Chief Executive whose decision shall be final. The Chief Executive shall have the right to ask the parties to summarise their points of view in writing and to ask them to attend a meeting or meetings to resolve the matter. Such procedure shall be without prejudice to the legal rights and remedies of S4C.

13.4 Where S4C considers it practicable, the source of the Clips and Rushes shall be

acknowledged in the credits at the end of S4C programmes in which they appear or (with the consent of the relevant S4C commissioning editor) within such programme.

13.5 In respect of the use of Clips and Rushes S4C or its suppliers shall pay charges in accordance with the Clips and Rushes Policy. S4C shall not be liable for any failure by its suppliers to pay such charges. 14. Promotional Rights 14.1 The Producer shall be entitled to promote and market the Programme outside the

Territory and after the Holdback (with S4C’s prior written approval) within the Territory. In doing so the Producer shall cooperate with S4C’s marketing department to ensure that its plans do not interfere with those of S4C and do not undermine S4C’s brand or the Programme or any transmission of the Programme by S4C.

14.2 The Producer shall assist S4C in S4C’s promotion of the Programme. The use of

Clips shall be free of charge. The use of Rushes shall be subject to individual negotiation of the fee (if any). The Producer shall not unreasonably withhold approval of the proposed fee.


14.3 S4C will attempt to give the Producer a credit in promotional material published by or on S4C’s behalf in relation to the Programme, to the extent that S4C considers it practicable.

15. Websites The Producer shall be entitled to create other websites based on the Programme or incorporating any element of it during the Holdback subject to obtaining S4C’s written approval beforehand. S4C will not withhold approval unreasonably. It will be reasonable for S4C to withhold approval where without limitation:- 15.1 the website does not meet S4C’s technical standards; 15.2 the website is in S4C’s view inconsistent with the nature feel or content of the

Programme or undermines or reflects badly on the Programme or S4C; 15.3 the website is inconsistent with S4C’s marketing and promotional strategy; or 15.4 it is implied that the website is S4C’s official website. Save as set out in Clause 13 the Producer shall not display or authorise or permit any third party to display any Clips or Rushes on any New Media. 16. Television Access Material Where S4C has commissioned television access material for the Programme (such as subtitles signing and audio description) it shall upon written request (and subject to there being no legal or contractual impediment to it doing so) provide copies of the same for use by the Producer in the exercise of the Reassigned Rights PROVIDED THAT the Producer shall pay S4C’s charges as determined by S4C from time to time. 17. Net Proceeds and Accounting 17.1 Except in relation to the exercise of the following S4C shall be

paid 30% of Producer Net Proceeds and the Producer shall be paid 30% of S4C Net Proceeds:-

17.1.1 Net Proceeds from the exercise by either party of the New

Media Rights shall be split equally between S4C and the Producer;

17.1.2 Net Proceeds from the exercise of the Renewal Rights

where S4C or its sub distributors grants the Existing


Licensee rights in a medium which was not licensed under the Existing Licence shall be the subject of agreement between the Producer and S4C (or its sub distributors as appropriate) on a case by case basis.

17.2 Any money payable in accordance with Clause 17.1 shall be paid

within sixty (60) days of the end of the Quarter in which it was r received by the Producer or S4C as the case may be.

17.3 Within sixty (60) days of the end of each Quarter in which Gross Income is received the Producer / S4C (as the case may be) shall provide the other with a statement of Net Proceeds (if any) payable to the other in respect of that Quarter. S4C and the Producer, their representatives and/or accountants shall have the right to inspect all relevant books of account of the other and shall have full rights of audit (at their own cost) in respect thereof during usual business hours upon reasonable notice. In the event that any such inspection or audit reveals an underpayment of more than ten (10) percent then the party making the underpayment shall pay the reasonable professional expenses incurred by other in carrying out such inspection or audit.

18. Producer’s Warranties In consideration of the Reassignment the Producer warrants undertakes and agrees to and with S4C:- 18.1 that the Producer will not charge or otherwise encumber the Programme or create

any lien over the Programme otherwise than in the ordinary course of business; 18.2 not make any representation (express or implied) or give any warranty on behalf

of S4C in any way to any third party; 18.3 not in any way to pledge the credit of S4C; 18.4 in the exercise of the Reassigned Rights not to do or omit to do anything directly

or indirectly prejudicial to the interest of S4C or to the contractual relationships of S4C with any third parties;

18.5 not to cause or permit anything which may damage or endanger or derogate from

the Reserved Rights. Without prejudice to the generality of the above the Producer shall not waive any right of action of S4C in relation to the Programme whether arising before or after the date of this Assignment;


18.6 to immediately keep S4C informed of and provide full particulars of all breaches

or infringements or potential breaches or infringements of the Reserved Rights and of any other right title or interest of S4C and of any actual or threatened claim by any third party which may affect the Reserved Rights of which the Producer is aware;

18.7 that it has the authority to enter into this Assignment and to perform all its

obligations under this Assignment; 18.8 that it shall be responsible for all payments which may be due in respect of the

exploitation of the Reassigned Rights;; 18.9 not to do nor omit to be done anything the doing or omission of which would

place S4C or its Group Companies in breach of the Third Party Agreements or Existing Licences or which may bring S4C or any of its Group Companmies into disrepute;

18.10 that in exploiting the Reassigned Rights it shall comply with all relevant Data

Protection legislation when handling data and information to which it has access or which it processes;

18.11 that in respect of all exploitation of the Reassigned Rights it shall report to the

DPRS in accordance with the requirements from time to time agreed between the DPRS on the one hand and producers, broadcasters and distributors on the other;

18.12 that in exploiting the Reassigned Rights it shall ensure contractually that the

exercise by S4C of the Reserved Rights (including the overspill referred to in the definition of “Territory”) shall not infringe the rights granted by the Producer (or its subdistributers or agents) to its /their licensees.

18.13 that S4C shall be entitled to seek sponsorship for its exploitation of the

Programme and to place advertisements around and in centre breaks within the Programme;

18.14 that it shall adhere to the plans for exploitation of the Reassigned Rights which

have been agreed and noted in the proposal form attached to Appendix and shall use best endeavours to maximise Producer Gross Income;

18.15 that it shall maintain at its own expense product liability insurance in such amount

as may be adequate to protect the Producer and S4C against any and all claims actions losses or damages arising out of any actual or alleged defects in the products produced in the exercise by the Producer and/or the subdistributors and licensees of the Producer of the Merchandising Rights such product liability insurance being from a reputable recognised insurance company;


18.16 that it shall at the sole cost and expense of the Producer take all steps that may be necessary to secure and protect the copyright and all other rights in the Programme in accordance with the directions (if any) of S4C;

18.17 that the Producer shall not manufacture or distribute any defective or sub-standard

items in the exercise of the Merchandising Rights and shall ensure that all products are of the highest quality and shall ensure that its assigns and licensees comply with this Clause;

18.18 that the Producer shall punctually pay to S4C all sums owing to S4C under this

Assignment and in the event of any late payment all sums due shall bear interest at the rate of 1½% above the base lending rate of Bank of Wales plc calculated from the due date until the date of payment;

18.19 all products produced in the exercise of the Merchandising Rights shall be of a

high standard and of such style appearance and quality as to be adequate and suited to exploitation to the best advantage of the Programme and so as not to reflect badly on S4C;

18.20 that exploitation of the Reassigned Rights shall be carried out and that all

products shall be manufactured sold and distributed in accordance with all applicable laws;

18.21 that S4C shall have the non-exclusive and irrevocable licence in respect of all

artwork produced by the Producer and its sub-licensees to use such artwork in the Territory free of charge.

19. Indemnity The Producer will indemnify and at all times keep S4C fully indemnified from and against all losses (including without limitation any loss of revenue or other economic loss) expenses claims demands actions proceedings costs damages or payments suffered, incurred or awarded, compensation agreed or liability whatsoever or howsoever arising in consequence of the exercise of the Reassigned Rights or of any breach or non-observance by it of all or any of the agreements undertakings obligations or warranties herein contained or arising in any way or as a result of any negligent or wrongful act or omission by it or its employee agent freelance sub-contractor or invitee including claims by rights owners or contributors to the Programme and claims in respect of defective products. 20. Producer’s Breach or Insolvency Without prejudice to any other rights or remedies which S4C may have in the event that:-


20.1 the Producer in breach of any of its obligations under this Assignment or the Commissioning Agreement which in S4C’s opinion is incapable of remedy or if capable of remedy is not remedied within 7 days of receipt of notice in writing from S4C requiring such breach to be remedied; or

20.2 the Producer transfers disposes of or threatens to transfer or dispose of any part of

its assets which is likely in the opinion of S4C to prevent or materially inhibit the performance by the Producer of its obligations under this Assignment or the Commissioning Agreement; or

20.3 the Producer is declared or becomes bankrupt or insolvent or is unable to pay its

debts within the meaning of Section 123 of the Insolvency Act 1986; or 20.4 the Producer convenes a meeting of its creditors or proposes or makes any

arrangement or composition with or any assignation for the benefit of its creditors or a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the Producer (save for the purpose of and followed by a voluntary reconstruction or amalgamation) or if an incumbrancer takes possession of or a trustee receiver administrator administrative receiver liquidator or similar officer is appointed in respect of all or any part of its business or assets or any distress execution or other legal process is threatened acquired or enforced upon any of such assets;

the consequences shall be as set out in Clause 22. 21. Consequences of Producer’s breach or insolvency 21.1 The Reassigned Rights shall forthwith upon written notice served by S4C upon

the Producer revert absolutely to S4C and the Producer shall have no further right title or interest in them; and

21.2 the covenant for further assurance and power of attorney provided for in Clause

23 shall apply; and 21.3 the Producer shall provide to S4C full written details of the exercise by the

Producer of the Reassigned Rights prior to the date of reversion (being the date on the notice served by S4C) together with copies of all agreements entered into by the Producer in the exercise of the Reassigned Rights.

22. Covenant for further assurance The Producer undertakes to do any and all acts and execute any and all documents in such manner and at such locations as may be required by S4C in S4C’s sole discretion in order to protect perfect or enforce any of the rights granted or confirmed to S4C pursuant


to this Assignment. In the event that the Producer fails within seven (7) Working Days from receipt of a written request from S4C to do any such act or execute any such document the Producer authorises S4C to do that act or execute that document in the name of and on behalf of the Producer and such authority and appointment shall take effect as an irrevocable appointment pursuant to the Powers of Attorney Act 1971 Section 4. 23. Rights of Action S4C shall have the sole and exclusive right to initiate and maintain any and all actions or proceedings which S4C in its sole discretion deems necessary in order to establish maintain or preserve any of S4C’s rights without prejudice to the right of S4C to join the Producer as a plaintiff in any such action and the Producer confirms that it shall have no right title or interest in respect of any monies recovered by S4C in respect of such action or proceedings. In the event that the Producer does not cooperate with S4C, S4C may use the power of attorney referred to in Clause 23. S4C shall indemnify the Producer in respect of reasonable pre agreed costs fees and expenses incurred by the Producer as a result of the Producer being so joined into any action as a plaintiff PROVIDED THAT this indemnity shall not apply and the Producer shall bear its own costs where S4C has exercised its rights under this Clause due to some breach or negligence on the part of the Producer its staff (freelance or otherwise) or its agents. 24. Confidentiality 24.1 Each party acknowledges that it has been or will be in a position to receive,

have access to or discover Confidential Information.

24.2 Both parties shall at all times keep private and confidential all of the Confidential Information of the other party and shall not and shall procure that their personnel do not disclose reveal, make public or communicate to any person or persons whether before, during or after this Assignment the Confidential Information or any part thereof or any other information which comes to its attention during and as a result of this Assignment provided that a disclosure by S4C under the FOIA or to Ofcom or to the DPRS or as otherwise required by law shall not be a breach of this nor the following Clause.

24.3 Both parties shall take all necessary precautions to ensure that all Confidential Information obtained from the other party under or in connection with this Assignment:-

24.3.1 is given only to such of the personnel and professional advisors or consultants engaged to advise it in connection with this Assignment as is strictly necessary for the performance of this Assignment or for legal


and accountancy reasons;

24.3.2 is treated as confidential and not disclosed (without prior written approval) or used by any personnel or such professional advisors or consultants otherwise than for the purposes of this Assignment and its enforcement.

25. General Provisions 25.1 The Producer shall not grant to any other party any right licence consent or

permission which could or might infringe upon or derogate from any of the Reserved Rights.

25.2 S4C shall be entitled to licence or assign the benefit of the Reserved Rights. The Producer may sub licence its rights hereunder but shall not assign the Reassigned Rights to any third party without the prior written consent of S4C.

25.3 Without limiting its rights of set-off at common law S4C shall have the right to

offset all monies due or to which it is otherwise entitled (whether under this Assignment or as a result of any settlement or judgement under which damages or indemnity in connection with this Assignment are due) from the Producer from time to time against and deduct them from all monies due from S4C to the Producer under this Assignment or any other agreement or arrangement.

25.4 The address of each party given in this Assignment shall be the relevant address for the service of notices until such party notifies the other of a new address in the United Kingdom.

25.5 A notice shall be deemed served on the next following Working Day if delivered by hand or if handed in at a Post Office properly addressed and prepaid for transmission by first class post or if sent by e-mail to the correct e-mail address and no delivery failure notice is generated. Any period of notice specified herein shall commence on the day of presumed service and shall be inclusive of Saturdays Sundays and Public Holidays.

25.6 No waiver by a party of any breach of any of the provisions in this Assignment shall be effective unless given in writing.

25.7 Failure or delay in exercising any right, power or remedy under this Assignment shall not in any circumstances impair such right, power or remedy nor operate as a waiver of it. The single or partial exercise by any party to this Assignment of any right, power or remedy under this Assignment shall not in any circumstances preclude any other or further exercise of it or the exercise of any other right, power or remedy.


25.8 The rights powers and remedies provided in this Assignment are cumulative and not exclusive of any rights, powers, remedies provided by law.

25.9 Any waiver of any breach of or default under any terms of this Assignment shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of this Assignment.

25.10 If any provision of this Assignment shall be prohibited by or adjudged by a Court to be unlawful void or unenforceable such provision shall to the extent required be severed from this Assignment and rendered ineffective, as far as possible without modifying the remaining provisions of this Assignment and shall not in any way affect any other circumstances or the validity or enforcement of this Assignment.

25.11 This Assignment sets out the entire agreement between the parties hereto in connection with the subject matter hereof and supersedes all prior agreements and undertakings relating to the production of the S4C Programme and no party has relied upon any representation save for a representation expressly set out in this Assignment.

25.12 This Assignment shall be construed as an agreement made in Wales and subject to the Laws of England and Wales and subject to the exclusive jurisdiction of the Courts of England and Wales.

25.13 This Assignment does not create or confer any rights under the Contracts (Rights of Third Parties) Act 1999 enforceable by any person who is not a party to this Assignment other than S4C Group Companies and any successor in title or sublicense of S4C or its Group Companies who shall be entitled to enforce this Assignment.

Signed and agreed for and on behalf of S4C by an authorised representative: ………………………………………. ………………………………………. (title) Signed and delivered as a deed for and on behalf of the Producer by an authorised representative :


………………………………………. ………………………………………. (title)


Appendix Programme Commissioning Agreement the agreement between S4C and the Producer dated [ ]. Existing Licences [specify details and attach copies] Date of first transmission (for calculation of the Holdback) Third Party Agreements [specify and attach copies] Requests for Clips and Rushes to be directed to: The Proposal Form is attached Special Stipulations:


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