Common use of Content and Materials Clause in Contracts

Content and Materials. (a) With respect to the White Label Application only, Section 3.2.2(b) of the Agreement is deleted and replaced with the following: (b) With respect to MobiTV Acquired Content, You will be solely responsible for acquiring all rights for content to be made available through, via, or in connection with, the White Label Application. AT&T may, in its sole discretion, acquire and/or license or create content (including, to the extent applicable, AT&T advertising materials) for distribution through the White Label Application (“AT&T Acquired Content”). In such case, the Parties will execute one (1) or more separate amendments to this Agreement (each, an “AT&T Content Amendment”) to address, among other things, (i) adjustments to revenue share to reflect any reductions in cost to You, taking into account MobiTV’s contractual requirements related to any such change in the content to be distributed through the White Label Application; (ii) any specific requirements from the provider of the AT&T Acquired Content (“AT&T Providers”) with respect to which You must comply, and (iii) reporting and payment to the AT&T Providers. Any master recordings and musical compositions embodied in the MobiTV Acquired Content must be wholly-owned by You or licensed to You in a manner that will not require the payment of any fees, royalties and/or sums by AT&T to You or any third party. As between You and AT&T, You are solely responsible, AT&T CONFIDENTIAL& PROPRIETARY 2 on a through-to-the-end-user basis, in connection with the MobiTV Acquired Content for (collectively, “Third-Party Royalties”): (v) all fees, royalties and other amounts of any kind or nature payable to record companies, artists and all other royalty participants; (w) all mechanical royalties, public performance royalties and all other amounts of any kind or nature payable to publishers or other owners, administrators or representatives of copyrighted musical compositions, spoken word or any other materials embodied in the MobiTV Acquired Content; (x) all fees, royalties and other amounts of any kind or nature payable to artists, celebrities and other third parties in connection with the use of their names, images, voices and likenesses as embodied in the MobiTV Acquired Content ; (y) all payments that may be required under union or guild collective bargaining agreements and the use thereof in accordance with this Agreement; and (z) any and all other royalties, fees or other amounts required to be paid to any and all third parties with respect to the use and exploitation of the MobiTV Acquired Content in accordance with this Agreement. Notwithstanding the foregoing, with respect to AT&T Acquired Content, AT&T will be responsible for all Third-Party Royalties other than Public Performance Rights (for which the responsibility shall be as provided below), except to the extent provided otherwise in an AT&T Content Amendment. With respect to payments in connection with the right to the public performance of musical compositions contained in AT&T Acquired Content (“Public Performance Rights”), AT&T will use good faith efforts to have such licenses and payments covered by its content providers. To the extent that, despite the use of good faith efforts, AT&T is unable to do so, MobiTV will, prior to the first public performance of the AT&T Acquired Content through the White Label Application, (a) either have in place a final license agreement with BMI and ASCAP covering the Public Performance Rights or have applied for a consent decree license from BMI and ASCAP covering the Public Performance Rights, and (b) have used good faith efforts to seek either a final license or an interim license with SESAC covering the Public Performance Rights (collectively “Additional Performance Licenses”). If, despite its good faith efforts to obtain a final or interim license with SESAC, MobiTV is unable to obtain such Additional Performance License prior to the first public performance of the AT&T Acquired Content, it will so notify AT&T in writing and AT&T will have the option to withdraw such AT&T Acquired Content. You will make good faith efforts to add the Additional Performance Licenses to your existing agreements with the performance rights organizations. To the extent that MobiTV is unable to include the Additional Performance Licenses in its existing agreements with the performance rights organizations and it will require MobiTV to spend more than an immaterial amount of money (i.e., in excess of $[*] in the aggregate) on external attorneys to obtain such Additional Performance Licenses, then MobiTV shall so notify AT&T and identify the estimated cost. If the parties mutually agree to still proceed with including such AT&T Acquired Content in the White Label Application, AT&T will have the option either to agree to pay such additional costs or to assume responsibility for the licensing of the Additional Performance Licenses for such AT&T Acquired Content with the applicable performance rights organization(s) at AT&T’s direct expense. Upon AT&T’s request, subject to confidentiality restrictions, MobiTV will provide AT&T with evidence of its agreements or applications for Additional Performance Licenses as applicable. MobiTV will, subject to the following sentence, pay for all required fees and royalties arising from the Additional Performance Licenses negotiated by MobiTV or by AT&T in accordance with this Section (“AT&T Performance Royalties”). You may ▇▇▇▇ AT&T for such AT&T Performance Royalties upon payment by You and AT&T will reimburse the cost of the AT&T Performance Royalties within [*] days of invoice. MobiTV’s payment obligation to ASCAP, BMI and SESAC for AT&T Acquired Content hereunder shall be contingent upon AT&T sharing any data (including without limitation content cost, advertising revenue and cue sheet data) which may be required by the applicable performance rights organization under the applicable license or consent decree. If AT&T assumes responsibility for the licensing of Additional Performance Licenses for AT&T Acquired Content with one or more performance rights organizations, AT&T will have the option (upon notice to MobiTV) to pay the applicable AT&T Performance Royalties directly to the applicable performance rights organization(s), in which case MobiTV will provide AT&T with such date as may be in its possession and which may AT&T CONFIDENTIAL& PROPRIETARY 3 * Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. be required by the applicable performance rights organization(s) under their license(s) with AT&T.”

Content and Materials. (a) With respect to the White Label Application only, Section 3.2.2(b) of the Agreement is deleted and replaced with the following: (b) With respect to MobiTV Acquired Content, You will be solely responsible for acquiring all rights for content to be made available through, via, or in connection with, the White Label Application. AT&T may, in its sole discretion, acquire and/or license or create content (including, to the extent applicable, AT&T advertising materials) for distribution through the White Label Application (“AT&T Acquired Content”). In such case, the Parties will execute one (1) or more separate amendments to this Agreement (each, an “AT&T Content Amendment”) to address, among other things, (i) adjustments to revenue share to reflect any reductions in cost to You, taking into account MobiTV’s contractual requirements related to any such change in the content to be distributed through the White Label Application; (ii) any specific requirements from the provider of the AT&T Acquired Content (“AT&T Providers”) with respect to which You must comply, and (iii) reporting and payment to the AT&T Providers. Any master recordings and musical compositions embodied in the MobiTV Acquired Content must be wholly-owned by You or licensed to You in a manner that will not require the payment of any fees, royalties and/or sums by AT&T to You or any third party. As between You and AT&T, You are solely responsible, AT&T CONFIDENTIAL& PROPRIETARY 2 AT&T Agreement No. 20100609.081.A.001 on a through-to-the-end-user basis, in connection with the MobiTV Acquired Content for (collectively, “Third-Party Royalties”): (v) all fees, royalties and other amounts of any kind or nature payable to record companies, artists and all other royalty participants; (w) all mechanical royalties, public performance royalties and all other amounts of any kind or nature payable to publishers or other owners, administrators or representatives of copyrighted musical compositions, spoken word or any other materials embodied in the MobiTV Acquired Content; (x) all fees, royalties and other amounts of any kind or nature payable to artists, celebrities and other third parties in connection with the use of their names, images, voices and likenesses as embodied in the MobiTV Acquired Content ; (y) all payments that may be required under union or guild collective bargaining agreements and the use thereof in accordance with this Agreement; and (z) any and all other royalties, fees or other amounts required to be paid to any and all third parties with respect to the use and exploitation of the MobiTV Acquired Content in accordance with this Agreement. Notwithstanding the foregoing, with respect to AT&T Acquired Content, AT&T will be responsible for all Third-Party Royalties other than Public Performance Rights (for which the responsibility shall be as provided below), except to the extent provided otherwise in an AT&T Content Amendment. With respect to payments in connection with the right to the public performance of musical compositions contained in AT&T Acquired Content (“Public Performance Rights”), AT&T will use good faith efforts to have such licenses and payments covered by its content providers. To the extent that, despite the use of good faith efforts, AT&T is unable to do so, MobiTV will, prior to the first public performance of the AT&T Acquired Content through the White Label Application, (a) either have in place a final license agreement with BMI and ASCAP covering the Public Performance Rights or have applied for a consent decree license from BMI and ASCAP covering the Public Performance Rights, and (b) have used good faith efforts to seek either a final license or an interim license with SESAC covering the Public Performance Rights (collectively “Additional Performance Licenses”). If, despite its good faith efforts to obtain a final or interim license with SESAC, MobiTV is unable to obtain such Additional Performance License prior to the first public performance of the AT&T Acquired Content, it will so notify AT&T in writing and AT&T will have the option to withdraw such AT&T Acquired Content. You will make good faith efforts to add the Additional Performance Licenses to your existing agreements with the performance rights organizations. To the extent that MobiTV is unable to include the Additional Performance Licenses in its existing agreements with the performance rights organizations and it will require MobiTV to spend more than an immaterial amount of money (i.e., in excess of $[*] in the aggregate) on external attorneys to obtain such Additional Performance Licenses, then MobiTV shall so notify AT&T and identify the estimated cost. If the parties mutually agree to still proceed with including such AT&T Acquired Content in the White Label Application, AT&T will have the option either to agree to pay such additional costs or to assume responsibility for the licensing of the Additional Performance Licenses for such AT&T Acquired Content with the applicable performance rights organization(s) at AT&T’s direct expense. Upon AT&T’s request, subject to confidentiality restrictions, MobiTV will provide AT&T with evidence of its agreements or applications for Additional Performance Licenses as applicable. MobiTV will, subject to the following sentence, pay for all required fees and royalties arising from the Additional Performance Licenses negotiated by MobiTV or by AT&T in accordance with this Section (“AT&T Performance Royalties”). You may ▇▇▇▇ AT&T for such AT&T Performance Royalties upon payment by You and AT&T will reimburse the cost of the AT&T Performance Royalties within [*] days of invoice. MobiTV’s payment obligation to ASCAP, BMI and SESAC for AT&T Acquired Content hereunder shall be contingent upon AT&T sharing any data (including without limitation content cost, advertising revenue and cue sheet data) which may be required by the applicable performance rights organization under the applicable license or consent decree. If AT&T assumes responsibility for the licensing of Additional Performance Licenses for AT&T Acquired Content with one or more performance rights organizations, AT&T will have the option (upon notice to MobiTV) to pay the applicable AT&T Performance Royalties directly to the applicable performance rights organization(s), in which case MobiTV will provide AT&T with such date as may be in its possession and which may AT&T CONFIDENTIAL& PROPRIETARY 3 * Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. AT&T Agreement No. 20100609.081.A.001 be required by the applicable performance rights organization(s) under their license(s) with AT&T.”