Common use of Early Availability Clause in Contracts

Early Availability. 3.7.1 Notwithstanding anything to the contrary contained herein, Licensor may make available to Other Distributors in the Territory any Current Film(s) on an availability date prior to such Current Film’s Home Video Street Date (an “Early Avail Date”); provided, that Licensor offers Licensee the same Early Avail Date for such Current Film on the same terms and conditions directly related to the grant of such Early Avail Date including (to the extent directly related) any more Favorable Economic Terms and any additional content protection requirements (for any marketing and/or promotional commitments which are impracticable for Licensee to meet, Licensor shall accept in substitution for each such commitment a comparable marketing and/or promotional commitment proposed by Licensee, and for any content protection technology, Licensor shall also offer any alternative content protection technology that Licensor has approved for use with respect to exhibition prior to the first pay television windows) (the “Early Avail Related Terms and Conditions”). Licensor shall provide Licensee with written notice of each Current Film with an Early Avail Date and the Early Avail Related Terms and Conditions (which disclosure shall be treated as confidential hereunder) no later than the earlier of (1) thirty (30) days prior to such Early Avail Date and (2) ten (10) business days prior to the last date by which Licensee must notify Licensor that it elects not to otherwise license such Included Program pursuant to Section 3.2.1; provided, however, that incidental, de minimus failure on the part of Licensor to provide such notice timely shall not constitute a breach hereunder and any such failure shall extend the date by which Licensor is required to exercise its election pursuant to Section 3.2.1 not to license such Included Program for the duration of such failure. Licensee shall have the right (but not the obligation) to match all such Early Avail Related Terms and Conditions with respect to a Current Film, and if Licensee so matches, this Agreement shall be deemed automatically amended to incorporate such Early Avail Date and such Early Avail Related Terms and Conditions with respect to such Current Film. In the event that Licensee does not exercise such right, Licensee shall remain obligated to license such Current Film as an Included Program hereunder as and to the extent otherwise set forth in this Agreement (i.e., as if Licensor had not elected to grant such Early Avail Date to such Other Distributor for such Current Film), in which case such Current Film’s Availability Date shall be determined pursuant to Section 3.3, exclusive of such Early Avail Date. For the avoidance of doubt, it is acknowledged and agreed that any early availability offer being made to an Other Distributor, and any change in the Early Avail Related Terms and Conditions of any such offer (even if previously offered to Licensee), shall in each instance trigger the match procedure set forth above in this Section 3.7.1. 3.7.2 Notwithstanding the provisions of Section 3.7.1, Licensor shall be entitled to grant an Early Avail Date to an Other Distributor on a more limited basis, including, without limitation, as a one-off or a bona fide test limited in duration and geographical scope, without offering Licensee the same opportunity as otherwise required pursuant to Section 3.7.1 (each an “Exclusive Early Avail Date Film”). Licensor shall provide Licensee with written notice prior to its Availability Date of each Exclusive Early Avail Date Film and its Early Avail Date (which disclosure shall be treated as confidential hereunder). 3.7.3 In the event that the number of Exclusive Early Avail Date Films (including those set forth in Section 3.10 below) equals ten percent (10%) of the total number of Current Films having an Availability Date during the Term, then thereafter Licensee shall not be obligated to exhibit (or continue to exhibit, if Licensee has commenced exhibiting) any Included Programs pursuant to this Agreement and the provisions of Section 6 below shall be of no force or effect retroactive to the Effective Date. For the avoidance of doubt, the granting of an Early Avail Date with respect to ten percent (10%) or more of the total number of Current Films with an Availability Date during the Term by Licensor to any Other Distributor (but not to Licensee) pursuant to this Section 3.7.2 shall not constitute a breach of this Agreement by Licensor, and except as otherwise provided in this Section 3.7.2, Licensee shall not be entitled to any rights or remedies as a result thereof.