Common use of Delivery and Materials Clause in Contracts

Delivery and Materials. 5.1 In this Agreement, “Delivery” shall mean delivery of the Notice of Availability (as defined in the Deal Terms) from Pathe to Distributor. Upon receiving a Notice of Availability from Pathe, the Distributor shall appoint an international shipping agent (the “Shipping Agent”) responsible for effecting delivery of the materials specified in the Notice of Availability to the Distributor and shall notify Pathe of the identity and address of such Shipping Agent. Pathe or its agent shall liaise with the Shipping Agent in order to transfer the Delivery Materials from Pathe’s laboratory or office to the Distributor’s nominated shipping address and subject always to the Distributor having paid for the costs of manufacture and delivery of such Delivery Materials in accordance with Clause 5 of the Deal Terms. Risk in all materials so transferred shall pass to the Distributor from the moment such materials leave the laboratory or Pathe’s offices as appropriate and the Distributor shall be responsible for insuring all such materials at their full replacement cost from and with effect from such time. In any event, where Pathe has issued a Notice of Availability, Distributor shall place an order for initial release materials and other available distribution materials within two (2) months of Pathe’s Notice of Availability 5.2 Pathe shall not be liable for any loss or delay attributable to the Shipping Agent. 5.3 The Distributor undertakes promptly to examine all Delivery Materials delivered to the Distributor under this Agreement in order to verify they are suitable for the exercise of the Rights granted to the Distributor. If any print material or pre-print material delivered to the Distributor is of such quality as to make it technically unfit for the Distributor to exercise the Rights granted to the Distributor the Distributor shall give immediate notice in writing to Pathe specifying the particular defect and shall return all defective materials. Pathe shall on receipt of defective materials returned by the Distributor provide the Distributor with substitute print and/or pre-print material free of charge if Pathe in the exercise of its reasonable opinion is satisfied that such materials are defective and were defective at the time when they left the laboratory or Pathe’s offices. In all other cases Pathe’s obligation to provide replacement materials shall be subject to the Distributor pre-paying the cost of manufacture and delivery. 5.4 Unless Pathe receives notice in writing specifying any defect in Delivery Materials fifteen (15) days following the earlier of delivery of such materials to the Distributor and/or the Shipping Agent such material shall be deemed to be of technically acceptable quality for the purposes of this Agreement. 5.5 Where any Delivery Materials are provided to the Distributor on loan (at such times to be agreed in advance in writing by Pathe) the Distributor shall be responsible for obtaining and maintaining insurance for the full replacement value of such materials at all times while in the possession of the Distributor or in transit or while in the possession of any laboratory authorised by the Distributor. The Distributor undertakes to return all such materials to Pathe no later than thirty (30) days after the earlier of the date the materials were first made available to the Distributor and/or its Shipping Agent or nominated laboratory. In case Materials sent on loan are returned damaged (in the Pathe’s laboratory sole opinion) or not received by Pathe in the delay above mentioned, Distributor shall pay all costs for replacement and /or restoration of such Materials (at the customary price of the Laboratory holding the internegative of the Film) immediately. 5.6 On the expiry or sooner termination of the Term the Distributor undertakes at its sole cost and expense to return to Pathe all Delivery Material delivered pursuant to this Agreement (other than material provided by way of loan which shall be returned in the time stated in Clause 6.5 above) and all other materials manufactured by the Distributor in connection with the Film. Notwithstanding the above Pathe may in its sole discretion require any or all of such materials or parts of them to be destroyed by the Distributor at the Distributor’s cost and the Distributor undertakes if so requested to provide Pathe with certification of such destruction in a form acceptable to Pathe within thirty (30) days after such request. 5.7 The Distributor is not entitled to order any of the Delivery Materials from any third party. All orders must be directed to the person specified in the Notice of Availability. 5.8 The Distributor undertakes not to make or cause to be made any copies of any part of the Delivery Materials delivered to the Distributor under this Agreement other than to permit the proper exercise of the Rights granted to the Distributor. 5.9 In the event that the Distributor makes or causes to be made any material pursuant to this Clause or pursuant to the terms of any laboratory access letter the entire property and title in all such materials shall vest in Pathe and shall clearly be marked as the property of Pathe. 5.10 The Distributor undertakes to give Pathe free and unrestricted access at all times throughout the Term subject to reasonable prior notice to all materials made by or on behalf of the Distributor in relation to the Film to permit Pathe or its licensees to copy and/or duplicate such materials. 5.11 Without prejudice to the copyright notice contained in the end credits of the Film, as provided by Pathe to the Distributor, the Distributor shall include on every copy of the Film distributed pursuant to this Agreement and on all related packaging (i) the relevant copyright notices; and (ii) customary anti-piracy notices (substantially in the form used by the US Studios in the Territory).