DRAFT DISTRIBUTION LICENSE AGREEMENT
THIS
AGREEMENT is entered into as of __________ by and between:
Xxxxxxx Xxxxx Media Group
whose address is 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxxxxx,
XX 00000 XXX, Tel: 000-000-0000, email: xxxxxxxxx@xxx.xxx,
Contact: Xxxxx X. Xxxxxxx ("Licensor")
__________
(“Distributor”)
Subject
to timely payment of all moneys due Licensor and Distributor's due performance
of all other terms of this Agreement, Licensor licenses exclusively to
Distributor, and Distributor accepts from Licensor, the following Pictures in
the following Territories on all the terms and conditions of this
Agreement.
This
Agreement consists of the following parts: Deal Terms being (the
Basic License Deal Terms, Financial Deal Terms and Delivery Deal Terms), the
AFMA International Multiple Rights License Standard Distribution Terms and
Conditions. All parts of the Agreement will be interpreted together to form one
Agreement. Where not defined where they first appear, words used in
this Agreement are otherwise defined in the Standard Terms and Conditions under
the Schedule of Definitions or in accordance with industry customs.
Where
either party is an agent for a principal, that party represents and warrants to
the other that it has full authority to execute this Agreement on behalf of its
principal and that its principal will be bound by its term.
DEAL
TERMS
As used
in the Agreement, the following terms shall have the meanings
indicated:
PICTURES: HIP-HOP
NATION (40 episodes x 1/2 hr)
RIGHTS
GRANTED: Home
Video Rights (VHS, DVD & VOD only)
All other
rights of any sort or nature are reserved to Licensor, including but not limited
to all forms of Television, Internet, Airlines, Ships at Sea, Soundtrack
CD/Merchandising and any others not specifically outlined herein (“Reserved
Rights”). The Reserved Rights are EXCLUDED from this contract and are
therefore not licensed to Distributor.
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TERM:
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Number
of years:
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5
years
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Start
date:
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End
date:
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TERRITORY(S):
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AUTHORIZED
LANGUAGE(S):
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(dubbed
or sub-titled)
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MINIMUM
GUARANTEE:
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$________Net
USD
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MATERIAL
COSTS:
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(__episodes
on each 90 master)
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(__
Digital Beta 90 Min Tapes)
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Net
USD
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(__Digital
Beta 30 Min Tape)
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Net
USD
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TOTAL
DUE:
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$____________Net
USD
No
withholding tax shall be
withheld
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PAYMENT
SCHEDULE:
20% of
the Minimum Guarantee ($___________) plus Material Costs ($____________) due
upon execution of the long form agreement, no later than _____________=
($____________) Net USD.
80%
balance of the Minimum Guarantee due no later than ________________=
($__________)Net USD
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DELIVERY SCHEDULE:
Licensor
shall deliver the materials within 7 days from receipt of deposit
payment.
Distributor
shall provide Licensor with its courier account number and be liable for all
shipping and import
charges.
MATERIALS:
1) Digital Betacam NTSC
Masters
2)
English Dialogue Lists
3) Music
Cues
4)
Digital Key Art on CD Rom as available
5) 6116
Tax Form
RELEASE DATE:
The
Distributor shall notify Licensor of Pictures Release Dates, but in no event no
later than 6 months from
Delivery.
GROSS
RECEIPTS:
Distributor
shall be entitled to recoup any Advances paid Licensor’s from Licensor’s share
of Gross Receipts. Gross Receipts shall mean all moneys actually
received by or credited to Distributor from the distribution, marketing,
exhibition, licensing and other exploitation of the Pictures, less all refunds,
credits, discounts and adjustments.
ROYALTY:
In
respect of the Home Video/DVD RENTAL and SELL THRU rights licensed hereto, Gross
Receipts arising in connection therewith shall be divided THIRTEEN (13%) to
Licensor and EIGHTY-SEVEN (87%) to Distributor.
DISTRIBUTION
OF GROSS RECEIPTS:
Distributor
shall be entitled to recoup only its advance plus Material costs prior to paying
Licensor its Royalty as defined below. Thereafter, the Distributor
shall pay the Licensor its Royalties in accordance with the % set forth above
and accordance with the quarterly statements set forth
below. Additionally, the aforementioned Royalties will be due the
Licensor on all Gross Receipts earned throughout the Term, regardless of
when they are actually received by the Distributor during the Term or after the
Term.
ACCOUNTING
AND REPORTS:
Distributor
shall maintain complete books and records with respect to all sales of the
Pictures whether sold, leased, licensed, or rented, and will render to Licensor
on a quarterly basis (within 60 days of the end of each calendar quarter) a
written statement of all Sales made, and all royalties due, accompanied by
remittance of such amount to be due.
Such
statements shall be complete, detailed and accurate and shall show the number of
Video Devices manufactured by and for Distributor during the Quarter, the number
of Video Devices sold during the Quarter, and the Collection of all income from
all sources for all Video Devices sold, leased, licensed and rented during the
Quarter.
Revenue
Statements for the Picture will be reported separately and shall not be crossed
with any other Picture(s). Local currency shall be converted at the time of the
remittance and shall be net of all withholding taxes.
SELL OFF
PERIOD: Distributor has 6 months from the
expiry of the Term in which to sell off or dispose of all unsold
stock.
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AUDITING: Licensor
or its designee(s) shall have the right, upon reasonable written notice, not
more than once in each calendar year to examine and take excerpts from
Distributor’s books and records as pertain to this Agreement. If such an
examination uncovers errors in excess of five percent (5%), the reasonable cost
of such audit will be paid by Distributor, and the amounts owed to Licensor
shall be paid immediately with interest, computed from the date originally due,
at the Prime Interest Rate at Licensor's lead bank plus two percent
(2%).
TIMELY REPORTING / BREACH OF
AGREEMENT: Timely reporting and payment of Royalties is of the
essence of this Agreement, and is an express condition precedent to
Distributor's exercise of any rights in the Pictures. If Distributor
fails to report or make payment each quarter in a timely manner, it shall
constitute a breach. If such breach is not cured within ten (10) days
of notification of breach, then this Agreement shall be Terminated and all
rights conveyed under this Agreement shall revert back to Licensor, and all
materials relating to the Pictures shall be returned to Licensor and Licensor
shall automatically be entitled to collect all monies due, or yet to become due
to Distributor, under any sale of the Pictures made by Distributor prior to such
Termination. In the event of such termination, Licensor shall not
refund or rebate any amounts whatsoever to Distributor (Licensor being entitled
to retain such amounts by way of partial liquidated damages).
ASSIGNMENT OF DISTRIBUTION
RIGHTS: Distributor has the right to sub license, in whole or
in part the distribution rights granted herein by Licensor to third parties
within the territory, provided, however, that such sub-licensee(s) shall assume
in writing all the terms and obligations of this Agreement, and to this end
(a) Distributor shall
furnish Licensor with the name and full address information of any and all
sub-licensee(s) and (b)
furnish Licensor with a signed document signifying sub-licensee(s) full
assumption of Distributor’s obligations under this Agreement.
TECHNICAL
ACCEPTANCE OF DELIVERY MATERIALS:
Distributor
shall check the materials for technical acceptance within 30 days from
delivery. If a master is found to be technically faulty, Distributor
shall return master to Licensor along with a detailed time-coded lab report from
a bona fide laboratory in the English language, and Licensor shall have 30 days
in which to replace master. If no detailed notice of faulty master is given to
Licensor within 30 days, then master shall automatically be deemed technically
accepted, and no refund shall be payable with respect to the amounts set forth
hereunder. If Licensor cannot deliver a technically acceptable
master, Licensor may replace Picture with another comparable Picture, with the
approval of Distributor, or Licensor must refund the allocated License
Fee.
DISTRIBUTOR
CREATED MATERIALS:
Licensor
will at all times have unrestricted free access to: 1) all alternate language
tracks and dubbed and subtitled versions, and 2) all advertising and promotional
materials, artwork and other Materials created by or controlled by Distributor,
or created at the direction of Distributor pursuant to this Agreement
(“Distributor Created Materials”). Licensor will immediately become
the owner of the copyright in all Distributor Created Materials, subject to a
non-exclusive free license in favor of Distributor to use such Materials during
the Term solely for exploitation of the Licensed Rights. If such
ownership is not allowed under a Law in the Territory, then Distributor will
grant Licensor a non-exclusive free license to use Materials worldwide in
perpetuity without restriction, and in no event shall Distributor use or exploit
said Distributor Created Materials after the expiration of its Term for the
Picture.
APPLICABLE
LAW:
The
parties hereby agree that California law shall govern their relationship and
that Los Angeles shall be the venue for any AFMA arbitration
hereunder. In the event of any dispute hereunder, the prevailing
party shall be entitled to recover its reasonable attorneys' fees in their
entirety. Save as provided for herein, all other terms and conditions
shall be governed by the provisions of the AFMA Standard Terms and
Conditions.
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RETURN
OF DELIVERY MATERIALS:
Upon
expiration of the Agreement Term, Distributor shall at Licensor's election
either: (i) return all Delivery Materials to Licensor at Distributor's
expense; or (ii) destroy all Delivery Materials and provide Licensor with a
customary certificate of destruction.
CENSOR:
Distributor
must obtain censorship approval in the Territory before taking delivery of the
Picture(s). If the Distributor takes delivery of Picture(s) without
obtaining prior censorship approval, Licensor is not responsible to replace the
Picture(s), and the License Fees set forth herein shall nevertheless be payable
in full.
MUSIC RIGHTS:
Licensor
represents and warrants to Distributor that Licensor controls all rights
necessary to synchronize the music contained in the Picture on all Copies
exploited by Distributor throughout the Territory for the Agreement Term.
Licensor authorizes Distributor to exploit such synchronization rights without
charge in conjunction with its exploitation of the Picture. Licensor will be
solely responsible for paying all royalties or charges necessary to obtain and
control such synchronization rights and Mechanical rights for the Agreement Term
and will hold Distributor harmless from any payments in this regard, Licensor
represents and warrants to Distributor that the non-dramatic performing rights
in each musical composition embodied in the Picture are: either (i) in the
public domain in the Territory; or (ii) controlled by Producer sufficient to
allow Distributor to exploit the Licensed Rights without additional payment for
such right; or (iii) available by license from the local music performing rights
society(ies) and its affiliate, such as ASCAP, SACEM and JASRAC in the Territory
affiliated with the International Confederation of Authors and Composers
Societies (CISAC). With regard to music in category (iii), Distributor will be
solely responsible for obtaining a license to exploit such
performance
rights from the local music performing rights society(ies) if
necessary.
ARBITRATION:
Any
dispute under this Agreement shall be resolved by final and binding arbitration
under the Rules of International Arbitration of the American Film Marketing
Association in effect when the arbitration is filed (the "AFMA
Rules"). Each Party waives any right to adjudicate any dispute in any
other court or forum, except that a Party may seek interim relief before the
start of arbitration as allowed by the AFMA Rules. The arbitration
will be held in Los Angeles, California. The Parties shall abide by
any decision in the arbitration, and any court having jurisdiction may enforce
it. The Parties submit to the jurisdiction of the courts in Los
Angeles, California to compel arbitration or to confirm an arbitration award.
The Parties agree to accept service of process in accordance with the AFMA
Rules.
NOTICES:
All
notices required or desired to be given hereunder shall be in writing (unless
otherwise herein specified) and shall be transmitted by personal delivery or by
prepaid fax, email, telegram, cable, telex or prepaid
airmail. Licensor's and Distributor's respective addresses for
notices shall be as set forth above. Either party may change its
address for notices by so advising the other party in writing. All
notices given by mail shall be deemed given when received, but in any event not
later than fourteen (14) days from the date of deposit in the
mail. All notices sent by telegram or cable shall be deemed given
when received, but in any event not later than two (2) days from the date of
deposit in the telegraph or cable office or with respect to an email, fax or
telex from the date of transmission of such.
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ANTI-PIRACY
PROVISIONS:
Subject
to all the terms and conditions of the ANTI-PIRACY PROVISIONS in AFMA’s STANDARD TERMS
& CONDITIONS, the parties agree that in the event that Distributor shall be
the sole participator in any anti-piracy action in the licensed Territory,
Distributor will first be reimbursed for reasonable attorney and legal expenses
from any recovery, and thereafter the balance of any recovery shall be divided
50% to Licensor and 50% to Distributor.
REGIONAL CODING: Distributor
shall apply Regional Coding as applicable in the Territory to all DVD Devices as
well as to other Home Video Devices that shall necessitate such coding, in order
to hinder their ability to be played and viewed in any other territories outside
the Territory. Distributor shall strictly adhere to
this provision.
ADDITIONAL
TERMS & CONDITIONS:
If the
Distributor does not make timely payment, the Licensor shall send a written
notice to Licensor of such default, and Distributor shall have 10 days to
cure. If no cure is made within 10 days, Licensor may, in its sole
discretion and without limitation, treat these events as being Distributor’s
breach so as to effect a repudiation of contract. Accordingly,
Licensor shall have the right to terminate, with immediate effect by written
notice to Distributor, the Agreement and the rights herein licensed without
prejudice to Distributor’s rights at law and equity. No waiver of any
breach shall be construed as an ongoing waiver of future breaches.
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AGREED
TO:
FOR
AND ON BEHALF OF
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FOR
AND ON BEHALF OF
XXXXXXX
XXXXX MEDIA GROUP/
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Distributor
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Licensor
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Its:
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Its:
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AFMA
INTERNATIONAL
STANDARD TERMS AND SCHEDULE
OF DEFINITIONS
The
undersigned have read and agree to all AFMA INTERNATIONAL MULTIPLE RIGHTS
DISTRIBUTION AGREEMENT STANDARD TERMS AND CONDITIONS.
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AGREED
TO:
FOR
AND ON BEHALF OF
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FOR
AND ON BEHALF OF
XXXXXXX
XXXXX MEDIA GROUP/
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Distributor
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Licensor
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Its:
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Its:
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