EXHIBIT 10.4
CONFIDENTIAL TREATMENT REQUESTED BY ACCESS INTEGRATED TECHNOLOGIES, INC.
OF CERTAIN PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH
RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934.
DIGITAL CINEMA DEPLOYMENT AGREEMENT
THIS DIGITAL CINEMA DEPLOYMENT AGREEMENT ("AGREEMENT"), made and entered into by
and among Buena Vista Pictures Distribution, 000 Xxxxx Xxxxx Xxxxx, Xxxxxxx, XX
00000 ("Distributor"), Christie/AIX, a subsidiary of Access Integrated
Technologies, Inc., 00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000
("CHRISTIE/AIX"), and Christie Digital Systems USA, Inc., 00000 Xxxxxx Xxxxx,
Xxxxxxx, XX 00000, ("CHRISTIE"), sets forth and describes the parties'
understanding with respect to the services described below (the "TRANSACTION").
WHEREAS Christie/AIX is in the business of funding the deployment of digital
projection systems for theatrical presentations in the United States and Canada
and Christie is in the business of developing and manufacturing digital
projectors for use in theatrical presentations in the United States and Canada.
WHEREAS Distributor distributes films produced by XXXX DISNEY PICTURES and
TOUCHSTONE PICTURES and is interested in having films it distributes under these
banners distributed digitally.
In consideration of the mutual covenants and agreements contained in this
Agreement, and for other good and valuable consideration, the sufficiency of
which the parties acknowledge, the parties agree as follows:
1. DEFINITIONS
(a) "APPROVED EXHIBITOR" is
(i) a Group 1 Exhibitor which has entered into an agreement with
Christie/AIX to have Projection Systems installed in the Territory, during
the Roll-Out Period by Christie/AIX in a minimum of ***% of the
exhibitor's total screens and a minimum of ***% of the screens per
complex;
(ii) more than one Group 1 Exhibitors which have each entered into an
agreement with Christie/AIX to have Projection Systems installed in the
Territory, during the Roll-Out Period by Christie/AIX in a minimum of ***%
of each Group 1 Exhibitor's total screens and a minimum of ***% of the
screens per complex;
(iii) both Group 2 Exhibitors which have entered into an agreement with
Christie/AIX to have Projection Systems installed in the Territory, during
the Roll-Out Period by Christie/AIX in a minimum of ***% of each
exhibitor's total screens and a minimum of ***% of the screens per
complex;
(iv) one Group 1 Exhibitor and one Group 2 Exhibitor which have each
entered into an agreement with Christie/AIX to have Projection Systems
installed in the Territory, during the Roll-Out Period by Christie/AIX in
a minimum of ***% of each exhibitor's total screens and a minimum of ***%
of the screens per complex; or
(v) any other Exhibitor as approved in writing by Distributor.
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SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
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(b) "CONTRACT YEAR" means a one-year period beginning on October 1st of one
year and ending on September 30th the following year. The "FIRST CONTRACT
YEAR" is October 1, 2005 to September 30, 2006.
(c) "DCI" means Digital Cinema Initiatives, LLC.
(d) "DCI SPEC" means the DCI Technical Specification Version 1.0.
(e) "DIGITAL SYSTEM" means collectively one or more Projection Systems, a
central storage server connecting all Projection Systems within a theatre
complex, a theater management system, and such other system components and
software as are required to meet the standards set forth in the DCI Spec.
(f) "DIGITAL TITLE" means a digitized version of a theatrical motion picture
released by a motion picture studio.
(g) "EXHIBITOR" means any exhibitor in the Territory to which Distributor
licenses motion pictures for theatrical presentation.
(h) "ENGAGEMENT" means the period of time beginning with an opening date of a
Digital Title within a theatre complex and ending on the closing date of that
Digital Title within that same theatre complex.
(i) "GROUP 1 EXHIBITORS" means ***, ***, ***, *** and ***.
(j) "GROUP 2 EXHIBITORS" means *** and ***.
(k) "INSTALLATION DATE" means the date which is two weeks after the date that
all components necessary for installation of a Digital System have been
received at the site where the Digital System will be installed.
(l) "MXF PLAN" means, collectively, the MXF Interoperability Compliance Test
Plan as set forth in ATTACHMENT A-1, and the MXF Interoperability Digital
Cinema Requirements, as set forth in ATTACHMENT A-2.
(m) "OTHER EXHIBITORS" means any Exhibitor which is not an Approved
Exhibitor.
(n) "PROJECTION SYSTEM" means collectively a system deployed by Christie/AIX
consisting of a DLP Cinema 2k projector, capable of both 2-D and 3-D display,
and a digital cinema server for each theatre screen. Each Projection System
will be a part of a Digital System.
(o) "ROLL-OUT PERIOD" means *** through ***.
(p) "TERRITORY" means the United States, including its territories and
possessions, and Canada.
2. TERM. The term of this Agreement will commence on August 1, 2005 ("EFFECTIVE
DATE") and terminate on September 30, 2020 (the "TERM").
*** CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
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3. DEPLOYMENT.
(a) Beginning of Deployment. Christie/AIX will begin deployment of the
Digital Systems immediately upon reaching written agreement concerning the
theatrical release of Digital Titles with (i) Distributor and at least two of
Fox, Paramount, Sony Pictures Entertainment, Universal and Warner Bros. (each
a "MAJOR STUDIO") or, alternatively, with Distributor, one Major Studio and
both DreamWorks and New Line; and (ii) at least one Exhibitor.
Notwithstanding the foregoing, Christie/AIX reserves the right to commence
deployment at any time prior to entering into such written agreements. If
Distributor has not entered into written agreements with an Exhibitor as set
forth in Section 7 below, within 2 months after this Agreement has been fully
executed, Christie/AIX may terminate this Agreement with no further
obligation to Distributor. Christie/AIX will retain the services of Christie
to install the Digital Systems according to the Roll-Out Schedule which
Christie/AIX must supply to Distributor within one week of Christie/AIX's
creation of the schedule. If for any reason Christie/AIX does not commence
deployment before October 31, 2005, it may terminate this Agreement with no
further obligation to Distributor.
(b) Minimum deployment. If for any reason Christie/AIX does not meet the
following minimum requirements, Distributor may terminate this Agreement with
no further obligation to Christie/AIX:
(i) Deploy a minimum of *** fully operational Projection Systems no later
than ***;
(ii) Have agreements for deployment with an Approved Exhibitor no later
than ***; and
(iii) Deploy fully operational Projection Systems to greater than ***% of
the screens in a complex.
(c) Maximum Deployment. The maximum number of Projection Systems which
Christie/AIX may include in this Agreement is *** ("MAXIMUM DEPLOYMENT"), of
which the maximum number of Projections Systems deployed to Other Exhibitors
is ***.
(d) Financing issues. If for any reason Christie/AIX does not meet the
following minimum requirements, other than by reason of failing to obtain
debt financing on reasonable terms, Distributor may terminate this Agreement
with no further obligation to Christie/AIX:
(i) Deploy a minimum of *** fully operational Projection Systems no later
than ***; and
(ii) Deploy a minimum of *** fully operational Projection Systems, no
later than the end of the Roll-Out Period.
4. GUARANTEE BY CHRISTIE. Christie unconditionally and irrevocably guarantees
all of Christie/AIX's obligations pursuant to this Agreement, including without
limitation all financial obligations, representations and warranties, and
indemnifications.
5. DCI SPEC COMPLIANCE. Digital Systems which Christie/AIX deploys during the
Roll-Out Period will meet or exceed the standards set forth in the DCI Spec. If
systems compliant with the DCI Spec are not available at the commencement of the
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SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
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Roll-Out Period, then Christie/AIX will deploy MXF Plan-compliant systems until
systems compliant with the DCI Spec become available. When the technology
necessary to make Digital Systems compliant with the DCI Spec becomes available,
Christie/AIX will (a) thereafter deploy only Digital Systems which are compliant
with the DCI Spec and (b) within four (4) months after such availability upgrade
all Digital Systems previously deployed to bring such Digital Systems into
compliance with the DCI Spec, at no incremental cost to Distributor, provided
that by *** all Digital Systems then deployed will be compliant with the DCI
Spec. Christie/AIX represents and warrants that it will require all exhibitors
utilizing Digital Systems to permit Distributor or its authorized representative
to verify compliance of such Digital Systems with the DCI Spec and to observe
installation methods and utilization of Digital Systems, and that it will
require all exhibitors to cooperate fully with on-site Distributor inspections.
6. JPEG 2000 / MXF INTEROPERABILITY. Christie/AIX will install all Digital
Systems deployed under this Agreement in the JPEG 2000 format if the format is
commercially available from at least three vendors at the time of installation,
and will upgrade all Digital Systems which were deployed before such time to
JPEG 2000. Christie/AIX will complete all such upgrades within three months of
the date that such format is commercially available from at least three vendors.
All Digital Systems which Christie/AIX deploys prior to the time that JPEG 2000
format is available will comply with the MXF Plan.
7. DISTRIBUTOR'S OBLIGATION REGARDING DIGITAL RELEASES. Nothing in this
Agreement obligates Distributor or its affiliates to license any motion picture
to any theatre, in any format, except as agreed by Distributor or its affiliates
and an exhibitor, in their sole discretion, on a picture by picture, theatre by
theatre basis: provided, however, that if an exhibitor and Distributor or its
affiliates agree to license a picture to a screen equipped with a Digital
System, Distributor will make the picture available, subject to ATTACHMENT B, as
a Digital Title. Distributor will use commercially reasonable efforts to enter
into a written agreement with any Exhibitor with which Christie/AIX has agreed
to deploy Digital Systems, concerning the general terms and conditions of
Distributor's licensing Digital Titles, but Distributor will have no obligation
under this Agreement until it has entered into such an agreement any such
Exhibitor. Subject to Distributor entering into such written agreements, if
Christie/AIX has deployed between *** and *** fully operational Projection
Systems, then Distributor will make available as Digital Titles at least *** of
its theatrical motion picture releases each Contract Year. Once Christie/AIX has
deployed *** or more fully operational Projection Systems, then Distributor will
make available Digital Titles in the minimum percentage, as shown on ATTACHMENT
B, of all theatrical motion pictures it releases each Contract Year.
8. DISTRIBUTOR'S OBLIGATION REGARDING VIRTUAL PRINT FEES AND WATERMARKING
LICENSE FEES.
(a) Distributor or its affiliates will pay to Christie/AIX one virtual print
fee ("VPF"), in the applicable amount set forth on ATTACHMENT C, per Digital
Title, per Projection System, and per Engagement, regardless of the number of
exhibitions. Distributor will not pay a VPF for:
(i) trailers;
(ii) material of less than 15 minutes duration which Distributor programs
and licenses to be exhibited only with the Digital Title (e.g., short
subjects, cartoons);
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SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
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(iii) moveovers, i.e., presentation of a Digital Title on a screen other
than where it opened at the beginning of the Engagement, but within the
same complex;
(iv) a screen where the Digital System malfunctions (by reason of system
defects and not due to operator error or power surges) preventing more
than one (1) exhibition of a Digital Title, except that on up to ten (10)
occasions aggregated Territory-wide per Contract Year, Christie/AIX may
charge a VPF where only two (2) consecutive exhibitions are missed;
(v) exhibition on a Digital System more than 10 years after the
Installation Date of that Digital System.
(b) If Christie/AIX licenses watermarking technology in order to have Digital
Systems comply with the DCI Spec, Distributor will negotiate with
Christie/AIX to determine what additional fee should be paid by Distributor
for the watermarking technology, provided however that (i) the fee will be
based upon Christie/AIX's actual direct out-of-pocket costs prorated over all
of Christie/AIX's customers; (ii) the maximum fee will be an increase of $***
per VPF; and (iii) the cost to Distributor to recover the watermark
identification will be reasonably competitive with DCI compliant watermarking
systems.
9. DISTRIBUTOR'S AFFILIATES. This Agreement applies to all films produced by
XXXX DISNEY PICTURES and TOUCHSTONE PICTURES regardless of whether the films are
distributed by Distributor or its affiliates. Distributor may, at its election,
include in this Agreement, on a picture by picture basis, any motion picture in
which Distributor or a Distributor affiliate has distribution rights or a
financial interest. Christie/AIX will calculate and charge VPFs based upon all
Digital Titles which Distributor releases combined with VPF on titles for
affiliates which Distributor has elected to have included in this Agreement.
10. QUALITY, RELIABILITY AND PERFORMANCE. Christie/AIX or its permitted
assignees will retain title to and will be responsible for maintaining and
servicing the Digital Systems for the Term. Christie/AIX or its permitted
assignees, agents representatives or subcontractors will:
(a) maintain an adequate staff of technicians to provide technical support
via telephone to exhibitors utilizing the Digital Systems. Such technical
support will be available to each exhibitor during theatre operating hours,
regardless of a theatre's location or time zone, seven days per week;
(b) provide a 2-hour on-site response time to theatre locations in the United
States (except that on any ten (10) occasions aggregated Territory-wide in
any Contract Year response time may be within 4 hours), and on-site response
time as promptly as possible in Canada, to provide technical assistance,
repairs and maintenance for Digital Systems;
(c) maintain the highest levels of quality and reliability in the design,
manufacture, deployment, performance and support of its Digital Systems;
(d) perform all services, including delivery, installation, and maintenance,
in a first class manner, and will comply with minimum standards of quality
and security which Distributor and Christie/AIX agree upon from time to time;
and
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SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
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(e) perform all services with fully trained and technically qualified
personnel. Christie/AIX will change and improve its services whenever
necessary to meet industry standards set by the DCI Spec and to maintain its
position as a leader in the digital cinema industry.
11. INVOICING, RECORD KEEPING AND AUDITS.
(a) Invoicing. Christie/AIX will issue one invoice to Distributor per month
for VPFs, in the month following the month in which the payment obligation
for the VPFs accrues. Distributor will pay invoices net forty-five (45) days
from the date of the invoice. Distributor will pay Christie/AIX only if the
invoices are substantiated to Distributor's reasonable satisfaction.
Distributor reserves the right to demand and receive explanation and further
supporting documentation for any invoice before payment.
Christie/AIX must address all invoices as follows:
Buena Vista Pictures Distribution
000 Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxx Xxxxx
(b) Reports. Christie/AIX will provide quarterly written reports to
Distributor indicating the amount and location of all Digital Systems
deployed under this Agreement, and Distributor will regularly report to
Christie/AIX locations and dates of all bookings of Digital Titles by
Distributor to such locations. Christie/AIX will make available to
Distributor all reports of all exhibitions of Digital Titles on Digital
Systems. Christie/AIX will, for at least four (4) years from the date of
invoice, keep records of all information on which invoices to Distributor are
based and records of rates charged to other customers for which Christie/AIX
provided the same or similar services.
(c) Audits. Distributor, at its sole expense, will have the right to audit,
during normal business hours and upon reasonable advance notice, but no more
than once in any calendar year, such records for the purpose of verifying
Christie/AIX and exhibitor obligations to Distributor, and for the purpose of
verifying Christie/AIX's compliance with its obligations under this
Agreement, including but not limited to the provisions of Sections 17 and 21.
Distributor will bear the cost and expense of such audit unless a material
discrepancy is found, in which case the cost of the audit will be borne by
Christie/AIX. A discrepancy is material if it involves an overpayment of 5%
or more. Distributor will, for at least four (4) years, keep records of all
bookings of Digital Titles, and Christie/AIX, at its sole expense, will have
the right to audit such records, during normal business hours and upon at
least 15 days prior written notice, solely for the purpose of verifying
amounts payable by Distributor to Christie/AIX.
12. LIMITATIONS ON LIABILITY.
(a) Limitations.
(i) Except as provided in Section 12(a)(iii) below, Distributor's only
remedy for Christie/AIX's breach of section 3 or 10 of this Agreement is
to terminate this Agreement.
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(ii) If Christie/AIX deploys, installs and maintains Digital Systems
according to its obligations in Sections 5 and 6, it will not be liable
for any loss to Distributor caused by the unreliability of the Digital
Systems, including but not limited to security failures (including only by
way of example flaws or breaches to security) or caused by the Digital
Systems unreliability, then Distributor's only remedy is termination of
this Agreement.
(iii) If a Digital System malfunctions (by reason of system defects and
not due to operator error or power surges), Christie/AIX's only liability
for the missed exhibition(s) will be to reimburse Distributor's
out-of-pocket costs (excluding only the actual print cost) up to a maximum
amount of $*** per malfunction, incurred to substitute a 35mm print at a
screen where exhibition of a Digital Title would be delayed more than 2
hours due to such malfunction; provided however, that on up to ten (10)
occasions aggregated Territory-wide per Contract Year such reimbursement
will be waived where no more than two (2) consecutive exhibitions are
missed.
(b) Exclusions to Limitations. Nothing contained in this Agreement limits the
liability of Christie/AIX
(i) for its willful or negligent acts; or
(ii) arising out of any personal injury, death or property damage
attributable to manufacturing defects in the Digital Systems or to any
installation, maintenance or support services provided with respect to
Digital Systems.
13. EXCLUDED COSTS. Distributor is responsible for costs of digital print
content preparation and distribution, including any and all costs relating to
producing, encoding, encrypting, packaging, watermarking (other than
watermarking which is part of the DCI Spec), marketing and delivering Digital
Titles. Distributor is also responsible for costs of key generation, delivery
and management. Distributor will not be responsible for payment to Christie/AIX
of any cost items arising out of or in connection with the deployment of Digital
Systems, including without limitation installation, testing, training, and other
on-site costs.
14. PROGRAM EXTENSION. The Maximum Deployment may be extended to subsequent
deployments of Digital Systems during or after the Roll-Out Period only by
written agreement of Christie/AIX and Distributor. Neither Christie/AIX nor
Distributor will be obligated to extend the Transaction to any subsequent
deployments of Digital Systems.
15. NON-EXCLUSIVITY / NON-INTERFERENCE. The Transaction is non-exclusive and
each party is free at all times to make agreements with others concerning
digital cinema. While this Agreement remains in effect, Christie/AIX agrees that
time is of the essence in providing the services. Christie/AIX may not render
any services to third parties which would interfere with the performance of
services under this Agreement.
16. PRESS RELEASE/NO USE OF DISNEY NAME. Except as required under applicable
law, neither party may disclose the content of this Agreement to any
unaffiliated third party (and any disclosure to an affiliated party will be on a
strictly confidential basis), or make any public statement or announcement
regarding this Agreement or the content hereof, without the prior written
*** CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
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approval of the other party. Buena Vista Pictures Distribution, Access
Integrated Technologies, Inc., Christie/AIX and Christie will work together to
agree to a joint press release regarding the execution of this Agreement, but no
party will have the right to issue a press release regarding the execution of
this Agreement unless each party mentioned in the press release approves, in
writing in its sole discretion, the text of the release. By the operation of
this Agreement, Christie/AIX acquires no right to use, and must not use, the
name "Buena Vista Pictures Distribution", "The Xxxx Disney Company", "ABC", or
"ESPN" or any derivation of such names, or any fanciful characters, trademarks,
trade names or designs of The Xxxx Disney Company or its subsidiary, affiliated
and related companies in advertising, publicity or promotion, to express or to
imply endorsement of products or services, nor in any other manner whatsoever
without the prior written approval of Distributor.
17. MOST FAVORABLE TERMS.
(a) AGGREGATE TERMS. If Christie/AIX or its affiliates provides comparable
services to any other customer at rates that, net of all consideration, are
lower than those charged to Distributor under this Agreement, then it will
reduce the rate charged to Distributor to the lower rate, effective as of the
date the Christie/AIX or its affiliates commenced charging the lower rate, or
afforded other consideration, to the other customer. Under this Section 17,
"CONSIDERATION" means anything of value, however denominated, afforded by
Christie/AIX or its affiliates to customers including, but not limited to,
all incentives, credits, discounts, up-front payments, loans, free services,
rebates and adjustments.
(b) LINE ITEM SERVICES. If Christie/AIX or its affiliates provides services
comparable to services provided under this Agreement to another customer for
any separate service lower than the rate charged to Distributor under this
Agreement, then it will notify Distributor in writing of the entire pricing
schedule it is providing to the other customer. Distributor will have the
option, exercisable in its sole discretion within 30 days of receipt of the
notice, to substitute into this Agreement the entire pricing schedule
utilized for the other customer.
18. KEY EMPLOYEE. The services of Xxx Xxxx, who works for Christie/AIX, and Xxxx
Xxxxx, who works for Christie (each a "KEY EMPLOYEE") are of particular
importance to Christie/AIX's and Christie's properly complying with their
obligations under this Agreement, and if a Key Employee ceases to be employed by
Christie/AIX, or Christie, respectively, Christie/AIX or Christie, as
appropriate, will immediately provide Distributor with written notice.
19. TERMINATION.
(a) Distributor's Rights. In addition to the termination rights set forth in
Section 3, above, Distributor may immediately terminate this Agreement, in
whole or in part, upon written notice to Christie/AIX if:
(i) the Digital Systems do not perform at the highest quality level
available in the digital cinema industry for 2k systems as of the time of
deployment, and at the reliability level of 35mm projection systems as of
the time of deployment, and Christie/AIX fails to cure the failure within
45 days from the date of Christie/AIX's receipt of notice, so long as
Christie/AIX commences immediately and diligently to remedy such failure;
(ii) there is any violation of the confidentiality or security provisions
of Sections 20 and 21, respectively;
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(iii) Christie/AIX ceases to support the program contemplated by this
Agreement;
(iv) Christie/AIX makes any assignment for the benefit of creditors or
files a petition in bankruptcy or is adjudged bankrupt or becomes
insolvent or is placed in the hands of a receiver or if any of the
equivalent of any of the foregoing proceedings or acts referred to in this
clause, though known or designated by some other name or term occurs;
(v) Christie/AIX breaches any other material term or provision of this
Agreement and fails to cure such breach within 45 days from the date of
Christie/AIX's receipt of notice, so long as Christie/AIX commences
immediately and diligently upon notice to remedy such breach;
(vi) a Key Employee ceases to be employed by Christie/AIX or Christie, as
appropriate, during the first three Contract Years, and Distributor, in
its discretion, determines that Christie/AIX or Christie may not be able
to adequately perform its obligations under this Agreement; or
(vii) there is a change in ownership of Christie/AIX.
(b) Christie/AIX's Rights. Christie/AIX may terminate this Agreement, in
whole or in part, upon written notice to Distributor if:
(i) Distributor violates the confidentiality provisions of this Agreement,
or
(ii) Distributor breaches any other material term or provision of this
Agreement and fails to cure such breach within 45 days from the date of
Distributor's receipt of such notice, so long as Distributor commences
immediately and diligently upon notice to remedy such breach.
20. CONFIDENTIAL INFORMATION. Distributor and Christie/AIX agree to keep
confidential this Agreement and all its provisions, along with any and all
information furnished to it by the other party, or their subsidiaries or
affiliates, representative or independent public accountants in connection with
the transactions contemplated by this Agreement except to the extent (i) any
such information is or becomes generally available to the public other than as a
result of disclosure by Distributor or Christie/AIX; (ii) any such information
is required to be disclosed by a court of competent jurisdiction or governmental
agency pursuant to subpoena or similar power; or (iii) any such information was
or becomes available to Distributor or Christie/AIX on a non-confidential basis
and from a source (other than a party to this Agreement or any advisor of such
party) that is not bound by a confidentiality agreement, and Distributor and
Christie/AIX will instruct their officers, employees and other representatives
having access to such information of such obligation of confidentiality.
Distributor agrees that auditors engaged by any of Christie/AIX's other
customers conducting a most favored nations audit of Christie/AIX shall have
access to this Agreement to the same extent as Distributor's auditors have
access to other Christie/AIX customer contracts pursuant to the provisions of
Section 11. The foregoing obligations will survive the termination or
cancellation or rescission of this Agreement and the same will not relieve the
parties of their obligations regarding confidentiality.
21. SECURITY.
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(a) Christie/AIX represents and warrants that it will implement and maintain
security procedures, to safeguard all Digital Titles, Disney Materials (as
defined in Section 22) and the Results and Proceeds (as defined in Section
23), including but not limited to during transport of any kind by or on
behalf of Christie/AIX, from damage and loss due to any cause, including but
not limited to conversion, misuse, destruction, loss, theft, loan, gift,
misdelivery, or other misappropriation, and that the security procedures it
maintains, must be equivalent in all respects to the highest standards
prevailing in the industry and agrees that the same will continue to be true
during the Term. Christie/AIX will provide Distributor with descriptive and
verifying documentation of its security procedures and will immediately
notify Distributor in writing if there is a breach or alleged breach of the
security procedures.
(b) Christie/AIX grants Distributor the right to periodic inspection of
Christie/AIX's security procedures, and promises that it will cooperate with
Distributor to the fullest extent possible in such periodic inspections and
resultant recommendations.
22. APPROVED USE OF DISNEY MATERIALS, OWNERSHIP OF COPYRIGHTS AND TRADEMARKS.
(a) Distributor grants to Christie/AIX a limited license to use the Digital
Titles and their underlying and constituent elements, including, but not
limited to artwork, designs, characters, logos and other materials (the
"DISNEY MATERIALS") which are owned by Distributor or its parent, related or
affiliated companies (collectively, the "COMPANIES"), solely in connection
with the performance of Christie/AIX's services under this Agreement.
Christie/AIX acknowledges that the copyrights and all other proprietary
rights in and to Disney Materials are exclusively owned by and reserved to
the Companies. Christie/AIX will neither acquire nor assert copyright
ownership or any other proprietary rights in the Disney Materials or in any
derivation, adaptation, variation or name of such Disney Materials.
(b) Except as specifically provided for in this Agreement, it is agreed that
Distributor is not granting to Christie/AIX, and Christie/AIX will not
acquire, any right to or interest in any copyright, trademark or service xxxx
relating to the Digital Titles or any other Disney Materials. All uses of the
Companies' trademarks by Christie/AIX under this Agreement will inure to the
Companies' benefit. Christie/AIX acknowledges that the Companies are the
exclusive owners of the trademarks, and of any trademark incorporating all or
any part of any Disney Materials, and the trademark rights created by such
uses. Without limiting the foregoing, Christie/AIX assigns to Distributor all
the trademarks, and any trademark incorporating all or any part of any Disney
Materials, and the trademark rights created by such uses, together with the
goodwill attaching to that part of the business in connection with which such
trademarks are used. Christie/AIX agrees to execute and deliver to
Distributor such documents as Distributor requires in order that protection
and/or registrations for the trademarks may be obtained or maintained and to
follow Distributor's instructions for proper use of the trademarks.
23. RESULTS AND PROCEEDS.
(a) Christie/AIX hereby acknowledges that the results and proceeds of
Christie/AIX's Services under this Agreement (the "RESULTS AND PROCEEDS")
will be deemed a work made for hire and/or work specially ordered or
commissioned by Distributor as part of a contribution to a collective work,
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as part of a motion picture or other audiovisual work. Distributor will be
the sole author of the Results and Proceeds and will have the right to obtain
copyrights and/or other protection thereof. Christie/AIX acknowledges that
Distributor is and will be the sole and exclusive owner of all rights of
every kind and will have the right to use, distribute and/or transfer the
Results and Proceeds of Christie/AIX's services and Distributor will have the
right to change, alter, add to, subtract from, rearrange or combine it with
any other material as Distributor may elect, throughout the world, in
perpetuity, in all languages.
(b) If for any reason the Results and Proceeds of Christie/AIX's work are not
deemed to be a work made for hire, Christie/AIX as beneficial owner hereby
assigns to Distributor all now known or later known existing rights of every
kind throughout the universe, in perpetuity and in all languages and formats,
in the Results and Proceeds (including without limitation, the copyright and
trademark thereto), including all rights of renewal and extension.
Christie/AIX agrees to execute and deliver to Distributor, at any time upon
Distributor's request, such further documents or do such other acts as may be
required to evidence, confirm, perfect, renew or extend Distributor's
ownership of rights in the Results and Proceeds.
(c) The provisions in this Section 23 will apply only to Disney Materials,
and Distributor will not claim ownership of any upgrades, improvements or new
technology developed by Christie/AIX, Christie or their suppliers merely on
the ground that the upgrades, improvements or new technology was developed in
whole in part based upon services provided by Christie/AIX under this
Agreement.
24. INSURANCE.
(a) Christie/AIX will maintain during the term of this Agreement:
(i) Commercial General Liability Insurance including contractual and
products/completed operations, with minimum limits of $10,000,000 on per
occurrence basis, and Automobile Liability coverage with minimum combined
single limits of $10,000,000, protecting Christie/AIX and Distributor from
claims for personal or bodily injury (including death) and property damage
which may arise from or in connection with the performance of
Christie/AIX's services under this Agreement or from or out of any
wrongful or negligent act or omission of Christie/AIX, its officers,
directors, agents, contractors or employees; and
(ii) Workers' Compensation Insurance as required by applicable law and
Employer's Liability Insurance with minimum limits of $1,000,000 per
occurrence.
(b) All such insurance required in this Section 24 must be evidenced on
standard industry forms and must provide that the coverage may not be reduced
or canceled unless thirty (30) days unrestricted prior written notice is
furnished to Distributor. All insurance must be primary and not contributory
with regard to any other available insurance to Distributor. All insurance
must be written by companies with a BEST Guide rating of B+ VII or better.
Christie/AIX must furnish certificates of insurance (or copies of policies,
if required by Distributor) to Distributor before providing any services
under this Agreement, and such policies must include Distributor, its parent,
and all affiliated and related companies as additional "insureds" and contain
a waiver of subrogation. (The additional "insured" requirement applies to all
coverages except Workers' Compensation and Employers Liability. The waiver of
subrogation applies to all coverages.) Distributor's payment obligations
11
under this Agreement are contingent upon receipt of a certificate of
insurance which complies with the above. Waiver of this requirement for a
payment or several payments does not constitute waiver of this requirement
for any other payment.
25. INDEMNIFICATION.
(a) Each party (the "INDEMNIFYING PARTY") will, at its sole expense, defend,
indemnify and hold harmless the other party and its parent company and any
subsidiaries, related and affiliated companies of each, and the officers,
directors, agents, employees and assigns of each (collectively, the
"INDEMNIFIED PARTIES"), from and against any and all claims, demands, suits,
judgments, losses or expenses of any nature whatsoever (including reasonable
attorneys' fees expended in actions for claims under this Agreement or in
pursuing any rights granted under this Agreement against the Indemnifying
Party) arising directly or indirectly from or out of:
(i) any wrongful or negligent act, error or omission of the Indemnifying
Party, its officers, directors, agents, contractors, or employees;
(ii) any occupational injury or illness sustained by an employee or agent
of the Indemnifying Party in furtherance of the Indemnifying Party's
services under this Agreement, to the extent benefits pursuant to
applicable Workers' Compensation laws are claimed against or held to be
payable by any Indemnified Party;
(iii) any failure of the Indemnifying Party to perform it obligations
under this Agreement in accordance with the highest generally accepted
professional standards;
(iv) the Indemnifying Party violation of the rights of any third party;
and
(v) any other material breach of the Indemnifying Party's obligations,
representations and warranties as set forth in this Agreement.
(b) The Indemnifying Party may not, without the Indemnified Party's written
consent, settle any Claim if such settlement arises from or is part of any
criminal action, suit or proceeding or contains a stipulation to or admission
or acknowledgment of any wrongdoing (whether in contract, tort or otherwise)
on the part of the Indemnified Party.
(c) Notwithstanding the foregoing, the Indemnified Parties may, in their
absolute discretion, employ attorneys of their own choice and institute or
defend any claim, action or proceeding and take other appropriate steps to
protect all rights, title and interest in and to any trademarks, trade names,
designs, or other intellectual property or other materials or property
provided to the Indemnifying Party by the Indemnified Party under this
Agreement, and in connection therewith, settle, compromise, or in any manner
dispose of any such claim, action or proceeding and satisfy any judgment that
may be rendered in any manner, as the Indemnified Party may in its sole
discretion may determine.
(d) The indemnities are not limited by the insurance requirements set forth
in Section 24. The provisions of this Section 25 will survive the expiration
or earlier termination of this Agreement.
12
26. WARRANTIES.
(a) Distributor represents and warrants to Christie/AIX that Distributor has
the full right, power and authority to enter into and perform this Agreement.
(b) Christie/AIX represents and warrants to the Companies that Christie/AIX
has the full right, power and authority to enter into and perform this
Agreement; that Christie/AIX has the experience and skill to perform the
services; that Christie/AIX will comply with all applicable Federal, state
and local laws including licensing and permit requirements; that all services
will comply with industry standards and practices, including improvements in
those standards and practices; and that Christie/AIX will perform the
services in accordance with the highest generally accepted professional
standards and in the most expeditious and economical manner consistent with
the best interests of the Companies.
(c) Christie/AIX represents and warrants that: (a) the media on which any
software that is embedded or otherwise utilized within the Digital Systems
will not contain any computer instructions whose purpose is to copy, disrupt,
damage or interfere with Distributor's or its Affiliates' use of any Digital
Title or any of their data, programs or computer or telecommunications
facilities for their commercial purposes; and (b) unless expressly authorized
in writing by Distributor, the software will not contain (i) any mechanism
which electronically notifies Christie/AIX of any fact or event, nor (ii) any
key, node lock, time-out, logic bomb or other function, implemented by any
means, which may restrict Distributor's use of or access to any Digital
Title, programs, data or equipment. Nothing contained in this Section 26(c)
restricts the monitoring of Digital System performance and operation for
maintenance and support purposes.
27. ASSIGNMENT. This Agreement is not assignable by Christie/AIX without the
written consent of Distributor and any attempted assignment without such consent
will be void. No assignment will relieve the assignor from its obligations under
this Agreement. Notwithstanding the foregoing, Christie/AIX may assign this
Agreement to a bankruptcy remote vehicle ("BRV") established in connection with
the financing of the acquisition of Digital Systems for deployment as
contemplated by this Agreement, and, in connection with any such financing,
Christie/AIX or any such BRV may grant security interests in or collaterally
assign this Agreement in favor of any bank or insurance company which is
directly or indirectly publicly held and whose primary business is finance or
insurance or any collateral agent for any such banks or insurance companies (the
"FINANCING PARTY"); provided, however, that any such assignment will not relieve
the assignor from its obligations under this Agreement. Neither the BRV or the
Financing Party may be affiliated with an exhibitor, distributor or producer of
theatrical motion pictures.
28. FORCE MAJEURE. If any loss or damage of any kind occurs by reason of any act
or omission of either party due to, or if either party is substantially delayed
in, or prevented from the performance of any of the covenants (other than the
payment of money) on its part to be performed pursuant to this Agreement on
account of, any cause beyond its control, including but not limited to acts of
God, the elements, strikes, walk-outs, fire, failure of transportation agencies,
public enemy, inability to obtain, or the failure of others to deliver, or the
delay of others in delivering, raw stock or other necessary material, machinery
or equipment, to the extent such party uses reasonable efforts and due diligence
to recover and resume performance, it shall be excused and the period of such
delay shall be disregarded in calculating the time of its performance and no
13
claim, offset or cause of action shall lie against any party at any time on
account thereof.
29. RELATIONSHIP BETWEEN THE PARTIES. The parties expressly agree that the
relationship between them is that of two principals dealing with each other as
independent contractors. Accordingly, nothing contained in this Agreement nor
activities undertaken by the parties pursuant to this Agreement or the
contemplated services will be deemed to create a joint venture, partnership,
employment or agency relationship between Christie/AIX and Distributor or
Christie/AIX and the Companies. Further, Christie/AIX is solely responsible for
the payment of all Federal, state and local income taxes, social security taxes,
Federal and state unemployment insurance and similar taxes and all other
assessments, contributions, dues or sums payable as a result of or in connection
with the services performed by Christie/AIX and Christie/AIX will sign and file
all related returns, forms and certificates (including I-9) with respect to any
of the foregoing. Christie/AIX has no authority to bind or contract on behalf of
Distributor or the Companies and must not hold itself out to any third party as
having any such authority. Christie/AIX is not entitled to participate in, or to
receive any benefits from, any of the Companies' benefit or similar programs,
specifically including, but not limited to, coverage under the Companies'
worker's compensation program. The Companies have no obligation whatsoever to
compensate Christie/AIX on account of any damages or injuries which Christie/AIX
may sustain as a result, or in the course, of the performance of Christie/AIX's
services.
30. SUBCONTRACTORS. With the exception of Christie, if Christie/AIX uses the
services of any subcontractors ("SUBCONTRACTORS") to perform services for
Christie/AIX in conjunction with its obligations under this Agreement,
Christie/AIX warrants and represents that it will: (i) identify in advance to
Distributor who it intends to use; (ii) allow Distributor to approve
Christie/AIX's choice prior to Christie/AIX's engaging the services; (iii)
require all Subcontractors to enter into a Services Agreement, utilizing the
form which is attached to this Agreement as ATTACHMENT D; (iv) provide
Subcontractors with written instructions on security which require the
Subcontractor to meet all security measures imposed by Distributor on
Christie/AIX; and (v) when executed, provide Distributor with copies of all
Subcontractors' Services Agreements. Christie/AIX will remain, in all respects,
directly and primarily liable to Distributor for all Services that it elects to
have performed by Subcontractors. Distributor approves Christie as a
Subcontractor of Christie/AIX.
31. ADDITIONAL DOCUMENTS. At either party's request, the other party will
provide and execute any documents required by Federal, state and local
authorities, insurance companies and all other documents consistent with the
terms in this Agreement which are reasonably necessary to carry out the intent
and purpose of this Agreement.
32. NOTICES. Notices will be effective when delivered to the specified address
and must be sent via certified mail; expedited delivery; or by messenger
service, with each of the foregoing providing for a written confirmation of
delivery; or via facsimile with verbal confirmation of receipt. Distributor will
send notices and correspondence to Christie/AIX at the address first set forth
above. Christie/AIX will send notices and correspondence to Distributor at the
following addresses:
Buena Vista Pictures Distribution
000 Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
14
With a copy to:
FOR ITEMS SENT VIA U.S. MAIL ALL OTHER METHODS
Buena Vista Pictures Distribution Buena Vista Pictures Distribution
000 Xxxxx Xxxxx Xxxxx Xxxxxx 0000 X. Xxxxxxx Xxx., Xxx. 000
Xxxxxxx, XX 00000-0000 Xxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxx Attn: Xxxxxx X. Xxxxx
33. MISCELLANEOUS.
(a) CHOICE OF LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of California applicable to contracts
made and to be wholly performed within such State (without giving effect to
any conflict of laws principles under California law).
(b) JUDICIAL INTERPRETATION. Should any provision of this Agreement require
judicial interpretation, it is agreed that the terms of this Agreement will
not be more strictly construed against the party who prepared this Agreement,
it being further agreed that each party has participated in the negotiation
of this Agreement and was given sufficient opportunity to consult legal
counsel before the execution of this Agreement.
(c) COUNTERPARTS. This Agreement may be executed in one or more counterparts,
including by facsimile transmission, each of which will be deemed an original
and all of which together will constitute one and the same instrument.
(d) HEADINGS. The headings and titles contained in this Agreement are for the
sake of convenience only and have no bearing on the content or substance of
this Agreement.
(e) SEVERABILITY. If any provision of this Agreement is adjudicated void,
illegal, invalid or unenforceable, the remaining terms and conditions will
not be affected, and each of the remaining terms and conditions of this
Agreement will be valid and enforceable to the fullest extent permitted by
law, unless a party demonstrates by a preponderance of the evidence that the
invalid provision was an essential economic term of this Agreement.
(f) FULL EXECUTION. This Agreement will not be effective until fully executed
by both parties or their duly authorized representatives.
(g) ENTIRE AGREEMENT. This Agreement, including any exhibits, contains the
entire understanding of the parties relating to the subject matter contained
in this Agreement and supersedes all prior discussions and writings between
them. In the event of any inconsistency between the provisions of this
Agreement and the provisions of any exhibit to this Agreement, the provisions
contained in this Agreement will prevail. This Agreement may not be modified
by language contained in any purchase order, invoice or other business form,
and may only be amended by a written instrument signed by the duly authorized
representatives of each of the parties which expressly amends this Agreement.
If Distributor pays Christie/AIX pursuant to an invoice, purchase order or
other business form submitted by Christie/AIX, the terms of this Agreement
15
will prevail if the terms of this Agreement are inconsistent with the terms
of the invoice.
ACCEPTED AND AGREED TO:
CHRISTIE/AIX BUENA VISTA PICTURES DISTRIBUTION
/S/ A. XXXX XXXX /S/ XXXXX XXXXX
By: ----------------------------- By: -----------------------------
A. Xxxx Xxxx Xxxxx Xxxxx
Its: CEO Its: President
Federal Tax ID. No.: ______________
CHRISTIE DIGITAL SYSTEMS USA, INC.
/S/ XXXX X. XXXXX
By: -----------------------------
Xxxx X. Xxxxx
Its: Xxxxxxxxx/XXX
00
XXXXXXXXXX XXXX
X-0 XXX INTEROPERABILITY COMPLIANCE TEST PLAN
A-2 MXF INTEROPERABILITY DIGITAL CINEMA REQUIREMENTS
B MINIMUM DIGITAL TITLE AVAILABILITY
C VIRTUAL PRINT FEES
D SUBCONTACTOR'S SERVICES AGREEMENT
17
ATTACHMENT A-1
MXF INTEROPERABILITY COMPLIANCE TEST PLAN
ATTACHMENT A-2
MXF INTEROPERABILITY DIGITAL CINEMA REQUIREMENTS
ATTACHMENT B
MINIMUM DIGITAL TITLE AVAILABILITY
During each Contract Year specified below, the number of Distributor
Digital Titles will, as a percentage of all Distributor wide release titles
(defined as *** or more screens on initial national release) during that
Contract Year, equal or exceed the applicable percentage shown below. (If the
percentage results in a fractional number, Distributor may round down to the
next whole number.)
---------------------------------------------------------------------------
CONTRACT YEAR MINIMUM PERCENTAGE
---------------------------------------------------------------------------
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1st ***%
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2nd ***%
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3rd ***%
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4th ***%
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5th ***%
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6th ***%
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7th ***%
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8th ***%
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9th ***%
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10th ***%
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11th ***%
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12th ***%
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In calculating the minimum percentages above, Distributor may subtract from the
number of wide release titles per Contract Year, the following:
CONTRACT YEAR NUMBER TO BE EXCLUDED/SUBTRACTED
1st *** movies
2nd *** movies
3rd and thereafter *** movies per Contract Year
*** CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
20
ATTACHMENT C
VIRTUAL PRINT FEES ("VPF")
1. a. STANDARD RATE. The first *** VPFs paid by Distributor to Christie/AIX
in any Contract Year will be at the applicable rate set forth in the table
below (the "STANDARD RATE") for
(i) Approved Exhibitors when the deployment occurred according to the
percentages set forth in Section 3(b); and
(ii) for Other Exhibitors.
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CONTRACT YEAR VIRTUAL PRINT FEE
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1st $***
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2nd $***
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3rd $***
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4th $***
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5th $***
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6th $***
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7th $***
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8th $***
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9th $***
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10th $***
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11th $***
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12th $***
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13th $***
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14th $***
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15th $***
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b. Volume Discounts.
(i) After the Standard Rate is paid on the first *** VPFs, the next ***
VPFs paid by Distributor to Christie/AIX in any Contract Year (i.e., *** -
*** VPFs) will be at a discount of ***% from the Standard Rate. (ii)
Thereafter, the next *** VPFs paid by Distributor to Christie/AIX in any
Contract Year (i.e., *** - *** VPFs) will be at a discount of ***% from
the Standard Rate. (iii) Thereafter, any VPFs paid by Distributor to
Christie/AIX in any Contract Year (VPFs in excess of *** VPFs) will be at
a discount of ***% from the Standard Rate.
c. Combined titles. VPFs for Digital Titles released by Distributor will be
combined with VPF on titles for affiliates which Distributor has elected to
have included in this Agreement pursuant to Section 9, for the purpose of
determining total VPFs paid in order to calculate discounts. For example, if
*** CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
21
in a given contract year, Distributor pays *** VPFs and an affiliate of
Distributor pays *** VPFs, the total VPFs for the purposes of calculating
discounts will be *** and the first *** VPFs are paid by Distributor or its
affiliate are paid according to the applicable rate set forth above and the
following *** VPFs paid by either Distributor or its affiliate will qualify
for a discount of ***% from the applicable VPF rate according to the Contract
Year.
2. REDUCED DEPLOYMENT RATE.
The Standard Rate will be revised according to the chart below ("REDUCED
DEPLOYMENT RATE") if
(a) Christie/AIX fails to deploy ***% of the total screens for the Approved
Exhibitors as set out in Section 1(a)(i)(iii) during the Roll-Out Period;
(b) Christie/AIX fails to deploy ***% of the total screens for the Approved
Exhibitors as set out in Section 1(a)(ii) during the Roll-Out Period; or
(c) Christie/AIX fails to deploy ***% of the total screens for the Approved
Exhibitors as set out in Section 1(a)(iv) during the Roll-Out Period.
---------------------------------------------------
CONTRACT YEAR VIRTUAL PRINT FEE
---------------------------------------------------
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1st $***
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2nd $***
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3rd $***
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4th $***
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5th $***
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6th $***
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7th $***
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8th $***
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9th $***
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10th $***
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11th $***
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12th $***
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13th $***
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14th $***
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15th $***
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3. SCREENINGS. Christie/AIX will not charge Distributor the Standard Rate or the
Reduced Deployment Rate for Screenings, but in place of the Standard Rate will
charge a VPF of $***. "SCREENINGS" means all exhibitions which are for invited
guests only and for which the guests are not charged an admission, including but
not limited to screenings for the Academy of Motion Pictures, trade screenings,
press events, or charitable events.
4. TEN YEAR LIMIT. Although the VPFs set forth in the tables above are specified
according to Contract Year, Christie/AIX will charge a VPF for any Digital
System for only the ten (10) year period following after the Installation Date
of that Digital System. For example, if the Standard Rate applies:
(a) if a Digital System is installed during the 1st Contract Year, VPFs on
that Digital System will be (before any applicable discount):
*** CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
22
(i) $*** for the remainder of the 1st Contract Year,
(ii) $*** for the 2nd and 3rd Contract Years,
(iii) $*** for the 4th and 5th Contract Years,
(iv) $*** for the 6th Contract Year through the expiration of the ten (10)
year period occurring in the 11th Contract Year, and
(v) $*** for the remainder of the 11th Contract Year and for the 12th ,
13th, 14th and 15th Contract Years; and
(b) if a Digital System is installed during the 2nd Contract Year, VPFs on
that Digital System will be (before any applicable discount):
(i) $*** for the remainder of the 2nd Contract Year,
(ii) $*** for the 3rd Contract Year,
(iii) $*** for the 4th and 5th Contract Years,
iv) $*** for the 6th Contract Year through the expiration of the ten (10)
year period occurring in the 12th Contract Year, and
(v) $*** for the remainder of the 12th Contract Year and for the 13th,
14th, and 15th Contract Year.
*** CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
23
ATTACHMENT D
SUBCONTRACTOR'S SERVICES AGREEMENT
_______________________("PROVIDER") as an independent contractor to Christie/AIX
("VENDOR") acknowledges that Buena Vista Pictures Distribution ("BVPD") has
imposed the following conditions on all of Vendor's independent contractors. As
a precondition to providing services to Vendor in support of its obligations to
BVPD ("SERVICES"), Provider accepts the following conditions:
1. OWNERSHIP OF RESULTS AND PROCEEDS. Provider expressly agrees that all of the
results and proceeds of all Services to be performed by Provider will be deemed
a work-made-for-hire for BVPD and that BVPD will be the author and copyright
owner of all such results and proceeds.
2. CONFIDENTIALITY OF MATERIAL. While providing Services, Provider may acquire
knowledge of confidential information, data and other information of or with
respect to BVPD which may not be accessible or known to the general public
("CONFIDENTIAL INFORMATION"). Any Confidential Information acquired by Provider
may not be used, published or divulged by without first having obtained the
written permission of BVPD, which BVPD may grant or withhold at BVPD's sole
discretion.
3. PROMOTION BY PROVIDER. Provider acquires no right to use, and may not use the
name "Disney" (either alone of in conjunction with or as a part of any other
word or name) or any fanciful characters, designs, trademarks or trade names of
The Xxxx Disney Company or any of its related, affiliated, or subsidiary
companies (a) in any advertising, publicity, promotion; (b) to express or to
imply any endorsement of Provider's products or services; nor (c) in any other
manner (whether or not similar to uses prohibited by Subparagraphs (a) and (b)
above).
4. SECURITY. Provider will comply will all security measures set forth by
Vendor.
5. WARRANTY. Provider warrants that all material provided to Vendor is wholly
original with Provider, or in the public domain; that Provider will comply with
all applicable federal, state and local laws including all permit and license
requirements; and that Provider will perform all services to be provided to
Vendor in accordance with the highest generally accepted standards in the
industry.
6. REMUNERATION SOLE RESPONSIBILITY OF VENDOR. Provider will look solely to
Vendor for all compensation and other remuneration for any Services Provider
renders.
7. INSURANCE. Provider will maintain throughout the performance of its services:
(a) Commercial General Liability Insurance (to include contractual and
products/completed operations endorsements) with minimum limits of
$10,000,000 on an occurrence form basis, and Automobile Liability coverage
with minimum combined single limits of $10,000,000 protecting it and BVPD
from claims for bodily injury (including death) and property damage which may
arise from or in connection with the performance of Provider's Services or
from or out of any wrongful or negligent act or omission of Provider, its
officers, directors, agents, subcontractors or employees; and
(b) Workers' Compensation Insurance as required by applicable law and
Employer's Liability Insurance with minimum limits of $1,000,000 per
occurrence.
All such insurance required in Paragraph 7.a. above must be evidenced on
standard industry forms and must provide that the coverage may not be reduced
or canceled unless thirty (30) days unrestricted prior written notice thereof
is furnished to BVPD. All insurance must be written by companies with a BEST
Guide rating of B+ VII or better. Certificates of insurance (or copies of
policies, if required by BVPD) must be furnished to BVPD, and such policies
must include BVPD, its parent, and all affiliated and related companies as
additional "insureds."
8. INDEMNIFICATION. Provider will defend (if requested by BVPD and with counsel
selected by BVPD), indemnify and hold BVPD, its parent company, or any
subsidiaries, related and affiliated companies of each, and the officers,
directors, agents, employees and assigns of each, harmless from and against any
and all claims, demands, suits, judgments, losses, or expenses of any nature
whatsoever (including reasonable attorneys' fees) arising directly or indirectly
from or out of: any wrongful or negligent act, error, or omission of Provider,
its subcontractors or their respective officers, directors, agents,
subcontractors, invitees or employees; any occupational injury or illness
sustained by an employee or agent of Provider in furtherance of Provider's
services to the extent benefits claimed pursuant to applicable Workers'
Compensation laws are claimed against or held to be payable by any of those
indemnified pursuant to this Section; or any other material breach of Provider's
obligations, representations and warranties as set forth in this Agreement. The
indemnities will not be limited by the insurance requirements of Paragraph 6(a)
above. The provisions of this paragraph will survive the expiration or sooner
termination of Provider's Agreement with Vendor.
__________________________ ("Provider")
DATE ______________ BY: ________________________________
NAME:_______________________________
TITLE: ______________________________
