2 Co-productions
Alan Harris
Things were fine between us, until the litigation started.
UK Producer discussing his relationship
with a Canadian Co-producer
Introduction
Increasingly over the past few years one of the most important items in the producer's toolbox has been an understanding of co-production treaties and conventions.
The British Government has entered into co-production treaties with other countries in Europe and around the world with the purpose of encouraging a pooling of creative, artistic, technical and financial resources among producers of those countries.
Films produced under the terms of a co-production treaty qualify as national content in the country of each participating co-producer and thus make the production eligible for applicable tax benefits from each co-production territory.
Co-production treaties fall into two categories:
- Bilateral treaties where the UK has official co-production treaties;
- Bilateral or multilateral structures under the European Convention.
Official Co-production Treaties
These include treaties agreed between Great Britain and Canada, Australia, New Zealand, France, Germany, Italy and Norway.
The treaties vary in their individual requirements and guidelines. Some require that the production qualifies under a points system (i.e., Australia), where points are awarded to key participants who are nationals of one or other of the co-producing countries, while other treaties have less onerous qualification requirements.
See the table for highlights of the individual treaties.
| UK's bilateral treaty partners | Minimum contribution | TV and video | Provision for co-producers from other country(ies) | Provision for financial participation only | Studio and labs |
| Australia | 30% | Yes | Yes | No | Normally majority country |
| Canada | 40% | Yes | Yes | No | Most in majoriy country |
| France | 20% for bilateral projects; 10% for some multilateral | No | No | No | Most in majority country |
| Germany | 30% | No | No | No | Most in majority country |
| Italy | 20% for bilateral projects; 10% for multilateral | No | Yes | Yes - typically 20% for bilateral; 10-25% for multilateral | Most in majority country |
| New Zealand | 20% | Yes | Yes | No | Most in majority country |
| European Convention on Cinematographic Co-production | 20% for bilateral projects;10% for multilateral | No | Yes (third party contribution not >30%) | Yes - 20-25% for bilateral; 10-25% for multilateral | In the states which are partners in the co-production, proportional to their investment |
European Convention
The Council of Europe's Convention on Cinematographic Co-production came into force in 1994. The Convention has been ratified by more than twenty European countries, including the UK. As with the official co-production treaties, a production that is produced in accordance with the terms of the Convention will be entitled to receive national status and national benefits from each of the co-producing countries.
If one of the co-producers is a British company, the film will be entitled to receive certification as a British film and, accordingly, the producer will be entitled to benefit deriving from a sale and leaseback transaction.
Treaty requirements
The Convention applies to theatrical feature films only. It provides that a film co-produced by a company that is established in the UK and one that is established in one of the other signatory countries of the Convention will be entitled to national treatment in each co-producing country if the film is produced under the terms of a co-production agreement between the two producers and in accordance with the requirements of the treaty. Generally, each co-producer must contribute at least 20 per cent of the financing to the production of the film. This applies to a two-way co-production. If it is a three-way co-production it may be 70 per cent:20 per cent:10 per cent. The co-production agreement must stipulate that the co-producers are joint owners of the original picture and sound negative.
Points system
In addition, the Convention establishes a points system to measure the European nature of the co-production. The Convention requires a minimum of 15 points out of a total possible 19 points awarded on the basis of European nationality in creative and technical categories. The points available to a production are:
| • Director: | 3 points |
| • Scriptwriter: | 3 points |
| • Composer: | 1 point |
| • First role: | 3 points |
| • Second role: | 2 points |
| • Third role: | 1 point |
| • Director of Photography: | 1 point |
| • Sound Recordist: | 1 point |
| • Editor: | 1 point |
| • Art Director: | 1 point |
| • Shooting location: | 1 point |
| • Post-production: | 1 point |
Exceptions
Two issues are relevant in the determination of points required under the Convention. First, the performer points awarded for the first, second and third roles are determined by the number of days worked, not by prominence of credit or financial compensation to the performers. Accordingly, a film with a non-European star need not lose three points for the appearance of that star if he or she is on set fewer days than one of the European performers.
Second, a film that achieves fewer than 15 of the total possible 19 points and is otherwise produced in accordance with the Convention may be granted status under the Convention on a discretionary basis if, having regard to the demands of the screenplay, the film nonetheless reflects a European identity.
Co-production Agreement
When either seeking, or being approached by, potential co-production partners it is important, before opening negotiations, to check out the potential co-producer and the project.
Unless the producer is known to you it is advisable to explore the following points:
- check company background and do a company search;
- ask other producers or production companies in that country;
- check out their production credits;
- determine who they have already approached re: financing/coproduction;
- ensure that the underlying rights to the script are clear;
- check out the viability of the financing plan. Ask to see any contracts for ‘committed’ funding;
- check the production budget closely;
- ensure that the timescale for pre-production, production and post-production are realistic.
One of the first tasks, even before the co-production agreement is drawn up, is the agreement between the co-production partners as to the roles they are each to perform on the production. The treatment of most other areas to be addressed in the agreement will relate to these roles and responsibilities.
Second, as a prerequisite to the agreement, one must establish the proportions in which the co-producers will share ownership of, and benefits, from the production. Whereas this should ideally reflect the effort and financial risks that the originating co-producer may have taken in developing the project prior to entering into the co-production, it must also give more than a passing nod to the limits and thresholds of the co-production treaty or convention under which the project is structured.
Co-production agreements are fairly complex but they all have a similar working skeleton upon which hangs the basic premise of the agreement between the parties. Here I outline a fairly basic but standard co-production agreement and explain the elements therein.
The agreement
The agreement is made on a certain [DATE] between [PARTY 1] and [PARTY 2].
Recitals
[PARTY 1] and [PARTY 2] agree to produce a film entitled [FILM] written by [WRITER]. It is intended to be produced as a [CO-PRODUCTION STRUCTURE] between [COUNTRY 1] and [COUNTRY 2].
A. Definitions and interpretation
Included in here are meanings of words and expressions included in the agreement. This section outlines such definitions as:
[BUDGET]
[THE BANK]
[DELIVERY DATE]
[THE TREATY]
etc.
B. Agreement to co-produce
(Roles and responsibilities of each co-producer)
This outlines what each co-producer must do to fulfil their side of the co-production, i.e., submit an application to the relevant authority for co-production status; agree to provide their contributions to the budget, etc.
This can also be where the implications of refusal for co-production status from any one of the co-production country authorities can be addressed.
C. Rights ownership
- Underlying Rights. Here the co-producers acknowledge the ownership of the underlying rights and the division of those rights to each co-producer.
- Copyright Ownership/Distribution Rights. The completed production is made up of many separate copyrights, copyright in the underlying rights; in the script; in the key artistic elements, etc. Here the agreement addresses these matters.
D. Production of the film
Here the agreement outlines specific elements of the film's production such as [COMMENCEMENT DATE], [DELIVERY DATE], [SHOOTING LOCATION], [POST LOCATION], etc.
Sometimes this section also includes the name and nationality of some of the principal cast and crew as these may need to be agreed so that the production can qualify under the treaty or convention being used.
E. The financing of the film
This section outlines where and how the film is to be financed. It outlines the financial contributions to be advanced from each co-producer and when they fall due. This is extremely important and must be calculated in conjunction with the co-production structure being used, as some treaties require a minimum amount to be contributed by a co-producer.
It is also where the cash flow of the film is outlined, the bank and the account are named and any compliance issues of handling the transactions are dealt with.
F. Management of the production
This section deals with the management of the production. It looks at the issue of joint responsibility and usually outlines which co-producer has the ultimate say should there be a disagreement.
It will discuss the engagement of individuals, cast and crew and the structure for this engagement. Also the issue of insurances, E&O (errors and omissions) and completion guarantees, etc., access to the locations, studios and facilities, delivery and registration of the film.
It will also confirm that the two co-producers are not linked by common management or control, which is a requirement in all co-production treaties and conventions.
G. Receipts
This area usually references the Finance and Distribution Agreement and deals with the application of receipts from the exploitation of the film.
H. Credits
Here the co-producers agree to the wording and form of the credits, usually also encompassing the nationality credit, i.e., ‘A [COUNTRY 1] – [COUNTRY 2] Co-production’.
I. Termination and force majeure
Should either co-producer commit a material breach of the agreement or go into liquidation the consequences of this are discussed in this section.
This section also deals with the impact of a delay in the production or delivery date and exactly when the Agreement is terminated, the responsibilities and liabilities of each co-producer.
J. No partnership
The Agreement does not constitute a partnership between the two co-producers.
K. Assignment
Subject to rights of each co-producer, this area states that neither co-producer is entitled to assign, charge or licence the Agreement to any other party without prior approval of the other co-producer.
L. Entire agreement
Basically this states that the agreement should be read in its entirety and that each party waives any right to seek remedy for mistakes or misrepresentations.
M. Notices
This is a standard legal inclusion about when something is deemed to have been delivered. When dealing with transactions and time-sensitive documents it is obviously vital to understand exactly when something can be legally termed delivered.
N. Governing law
This states the legal jurisdiction in which the Agreement has been drawn up and will be governed by should there be any dispute.
Schedule 1.Production Specifications
Schedule 2.Budget
Schedule 3. Cashflow Schedule
The Co-production Agreement
THIS AGREEMENTis made the [ ] day of [ ] 200 [ ] BETWEEN:
(1) [CO-PRODUCER 1], [ADDRESS] (‘[ ]’ or the ‘[ ] Co-producer’);
AND
(2) [CO-PRODUCER 2], [ADDRESS] (‘[ ]’ or the ‘UK Co-producer’);
Recitals
- UK CO-PRODUCER and [ ] (together referred to as ‘the Co-producers') intend to co-produce a full length feature film provisionally entitled ‘[ ]’ (‘the Film’) based upon the original screenplay written by [ ].
- The Co-producers intend to produce, complete and deliver the Film in accordance with the terms and provisions of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of [ ] concerning the Co-production of Films dated [ ] (the ‘Treaty’) and to apply to the relevant authorities for recognition of the Film as an official co-production under the Treaty.
- The Co-producers are entering into this Agreement for the purpose of setting out the terms and conditions pursuant to which they will finance, co-produce, and seek to obtain official co-production status for the Film.
THE PARTIES NOW AGREE as follows:
- Definitions and interpretation
a.In this Agreement the following words and expressions shall, unless the context otherwise requires, have the following meanings respectively:
b.Any reference in this Agreement to the Film or a film shall, unless the context otherwise requires, be deemed to include a reference to any soundtrack associated with such film.
c.Words denoting the singular shall include the plural and vice versa, words denoting any gender shall include every gender, and words denoting persons shall include corporations and vice versa.
d.Any reference in this Agreement to any statute, statutory provision, delegated legislation, code or guideline shall be a reference thereto as the same may from time to time be amended, modified, extended, varied, superseded, replaced, substituted or consolidated.
e.The Clause headings and sub-clause headings in this Agreement are for the convenience of the parties only and shall not limit, govern or otherwise affect its interpretation in any way.
- Agreement to co-produce
The Co-producers hereby agree that they will each in consultation with the others, apply to the Relevant Authority in their country for recognition of the Film as an official co-production under the Treaty within the time limits set out in the Treaty, and subject to the terms hereof, the Co-producers agree to advance their respective Contributions to the Budget in accordance with the Cashflow Schedule and to do or cause to be done all things of every kind necessary to co-produce, complete and deliver the Film and otherwise deal with the Film in accordance with this Agreement and in compliance with the provisions of the Treaty and with any special conditions imposed by the Relevant Authority.
Notwithstanding the foregoing, as a strict condition precedent to each Co-producer's participation in the co-production of the Film hereunder, each Co-producer shall provide evidence that it has secured sufficient financing to cover its full contribution to the Budget by no later than [DATE]. - Rights ownership
f. The Underlying Rights
The Co-producers acknowledge that the underlying rights in the Work and the Screenplay have been acquired by [ ] and the amounts paid by [ ] in relation thereto shall be deducted from the [ ] Contribution and each party hereto shall thus have an undivided interest in such underlying rights in the same proportion as its interest in the Film hereunder (i.e., [%] for [ ] and [%] for UK CO-PRODUCER).g. Copyright Ownership
As co-producers under the Treaty the Co-producers will be co-owners of the copyright in the Film when made and accordingly (and where appropriate by present assignment of future copyright) for the full period of copyright and all renewals and extensions thereto wherever possible, and, to the extent permitted by law, in perpetuity:- In the [ ] Territory, [ ] shall be the exclusive and sole owner of the entire copyright, title and interest in and to the Film including, without limitation, all rights of commercial exploitation, and all proceeds derived therefrom for the full period of copyright and all extensions and renewals thereof; and
- In the United Kingdom Territory, UK CO-PRODUCER shall be the exclusive and sole owner of the entire copyright, title and interest in and to the Film including, without limitation, all rights of commercial exploitation, and all proceeds derived therefrom for the full period of copyright and all extensions and renewals thereof;
- with regard to the Remaining Territory the Co-producers shall be entitled to and shall retain a percentage of the copyright and all other rights in the Film and all proceeds derived therefrom pro rata to their respective Contribution and the Co-producers each hereby make the assignments necessary to achieve such joint ownership for the full period of copyright and all extensions and renewals thereof.
h. Distribution Rights
It is hereby acknowledged that all distribution rights in the Film in the Remaining Territory shall be granted to a mutually agreed sales agent. For the avoidance of doubt any and all receipts and revenues derived by the Co-producers arising from the exploitation of the Film and all allied and ancillary rights in the Remaining Territory shall be allocated to the Co-producers in the same proportions as their contributions respectively. - Production of the film
i. Principal photography of the Film is scheduled to commence on [ ] and it is agreed between the Co-producers that the scheduled delivery date for the Film shall be on [ ] (‘the Delivery Date’).
j. The Co-producers have agreed to engage the following individuals for the Film, or where no individual is yet agreed, have agreed to engage an individual of the nationality referred to:
Role Nationality Name Director Scriptwriter Composer Principal Actors:
First Role
Second Role
Third Role
Fourth Role
Fifth Role
Sixth Role
Seventh RoleCameraman Sound Recordist Editor Art Director k. Principal photography of the Film shall take place in [ ] and post-production of the Film shall take place in the UK.
l. All Co-producers shall contribute technical and artistic elements of their own nationality, and all reasonable endeavours shall be made to ensure that each Co-producer's contribution in terms of creative personnel, technicians, actors and technical equipment shall be proportionate to the investment by that Co-producer in the Film.
m. At least ninety per cent (90 per cent) of the footage included in the Film shall be shot specially for the Film.
n. The sound-track for the Film shall originally be recorded in [LANGUAGE] and an additional version of the sound-track shall be produced prior to the Delivery Date dubbing the Film in English and UK CO-PRODUCER shall have access to all materials necessary to manufacture the English version of the Film.
o. The Co-producers undertake to ensure that, upon completion of the Film, all persons connected with the development and production of the Film and its sound-track shall have been duly paid.
p. To the best of the knowledge and belief of each of the Co-producers, no part of the Film (including its title) infringes or violates the trademark, copyright, patent or other rights of any person or entity.
q. To the best of the knowledge and belief of each of the Co-producers, no part of the Film by sight or sound contains any defamatory matter.
r. The Co-producers will keep each other fully informed with regard to the progress of the Film's production.
s. The Co-producers shall keep full and accurate records and books of account relating to the Film and each Co-producer shall be entitled to audit, inspect and copy all and any documents and agreements relating thereto.
t. The Co-producers agree to permit the completion guarantor to be accorded customary rights with respect to the Film including, without limitation, takeover, recoupment and first position security assignment rights.
u. The Co-producers shall mutually agree on the participation of the Film at any international film festivals and/or markets and shall agree on the maximum expenditure to be incurred in relation to the same and shall share such expense in the same proportion as their contribution to the Budget.
- The financing of the film
v. The Co-producers' Contributions
The Co-producers shall each be responsible for advancing or causing to be advanced a proportion of the monies required for the financing of the cost of the production of the Film; [ ] shall advance or cause to be advanced not less than the [ ] Contribution, being [ ] ([ ]) net of all taxes, levies and duties, if applicable, in accordance with the Cashflow Schedule; UK CO-PRODUCER shall advance or cause to be advanced not less than the British Contribution, being [ ] ([ ]) net of all taxes, levies and duties, if applicable, in accordance with the Cashflow Schedule. Each Co-producer will participate in any excess of the Budget on a pro-rata basis of its contribution.w. Cashflow
The sums to be advanced or caused to be advanced by each of the Co-producers shall be advanced at the times and by the instalments and in the currencies set out in the agreed Cashflow Schedule for the Film, provided that if the exigencies of production require amendments to such Cashflow Schedule each party will vary its advances of its Contribution accordingly, and shall be deposited in a bank account at the Bank, which account shall operate in accordance with a bank mandate approved by the parties hereto, and shall be known as the ‘[ ]’ Production Account (‘the Production Account’). The Production Account shall be operated only for the purposes of production of the Film in accordance with the Budget and the Cashflow Schedule and in accordance with the provisions of this Agreement.x. Completion of Contributions
The financial contributions of the Co-producers to the Cost of Production shall be completed no later than sixty days following the Delivery Date.y. Refusal of Co-production Status
If the Film is refused conditional approval as a co-production film by the Relevant Authorities, then the Co-producers shall negotiate in good faith to try to agree terms upon which to proceed to production of the Film without co-production status, Provided That if no agreement has been reached between the Co-producers fourteen (14) days after the date of such refusal (or such longer period as shall be agreed by them) then production of the Film shall be deemed abandoned, and each Co-producer shall be liable for a proportion of the costs incurred, with the approval of all parties, in connection with the development and pre-production of the Film, such proportions being equal to each Co-producer's proposed Contribution to the Budget.z. Failure to Meet Conditions/No Public Exhibition
If:- the Film is granted conditional approval of co-production status and fails to comply with the conditions of such approval; or
- the Film is given final approval of co-production status, but is refused permission for public exhibition in the United Kingdom Territory or the [ ] Territory then the financial liabilities of the Co-producers in relation to the Costs of Production shall be proportionate to each Co-producer's Contribution to the Budget pursuant to this Agreement.
aa. If the circumstances set out in Clauses z(i) or z(ii) arise as a result of a failure by one of the Co-producers to comply with its obligations hereunder or under the Treaty or any special conditions imposed by the Relevant Authority, then the defaulting Co-producer shall be solely responsible for the additional financial liabilities arising directly from such default.
- Management of the production
bb. Joint Responsibility
Except as otherwise provided in this Agreement, the Co-producers shall have joint responsibility for managing all aspects of the production of the Film, including all financial and creative decisions. In the event that the Co-producers shall fail to agree on any matter after reasonable consultation then, subject always to the provisions of this Agreement and the requirements of the Treaty and any special conditions imposed by the Relevant Authority, and to the constraints of the Budget and the Production Schedule, the decision of [ ] shall prevail. The Co-producers shall each keep others fully informed on all matters relating to the Film.cc. Application to Relevant Authorities
The Co-producers shall forthwith apply to the Relevant Authority in their country with a view to obtaining a provisional approval for the Film as a co-production project under the Treaty. Each Co-producer shall be responsible to its respective national Relevant Authority for the submission of all relevant information in connection with the co-production and for endeavouring to comply with any terms or conditions upon which any approvals by such authorities have been or may be given.dd. Engagement of Individuals
Each of the Co-producers shall be primarily responsible for the engagement (on terms to be agreed between them) of the respective nationals whose services are required and utilized for the production, completion and delivery of the Film. All such engagements as aforesaid must be within the financial and other terms as required and stipulated by the Budget and the Production Schedule. If the terms of such
engagements cannot be agreed between the Co-producers the decision of [ ] shall be final. All contracts shall be in a form usual in the film industry and shall be consistent with this Agreement and with the requirements of any financiers. Such contracts shall contain a grant of rights to permit the widest legally permissible exploitation of the Film. Such grant of rights shall specifically include an assignment of and an unrestricted authorization of exploitation of all performers' property rights, including (but not limited to) exploitation of the Film by means of rental and lending, and the contracts shall include an acknowledgement that the payment provided in the contracts includes an element representing equitable remuneration for the authorization of rental and lending. Further, all contracts for production of the Film shall include a waiver of moral rights, to the extent (if any) that such waiver is legally permissible. Each Co-producer shall be solely responsible for payment of any music performing rights or local charges and levies pursuant to laws in its exclusive territory in connection with the exploitation of the Film rights.ee. Insurance
The Co-producers agree to obtain and maintain all such insurances as are customarily maintained by producers of first class films including the following:- Errors and omissions insurance (for a period of not less than three (3) years);
- Public and employer's liability indemnity;
- Indemnity against loss of or damage to negative stock;
- Indemnity against accident, illness or death of the director and principal cast members and such other individuals as the Co-producers shall consider advisable;
- A completion guarantee;
- Such other insurances as may be prudent in the circumstances of the production of the Film or as may be required by law.
All insurances shall name all of the Co-producers as insured and shall have limits of liability, be subject to such deductions and exclusions and shall be maintained for such period as shall be agreed between the Co-producers (or if the Co-producers shall fail to agree, as shall be determined reasonable by [ ]). The Co-producers shall notify each other of any occurrence which may give rise to an insurance claim and shall consult concerning its settlement. No Co-producer shall do or permit to be done anything whereby any of the policies entered into may lapse, or become, in whole or in part, void or voidable.
ff. Access
Representatives of each of the Co-producers shall be given unrestricted access to all locations, studios and facilities at which the Film is produced and shall have the right to inspect daily rushes of the Film and during post-production to view all cuts of the Film.gg. Delivery of the Film
- During Production of the Film, all materials will be held at a mutually agreed laboratory in the joint names of the Co-producers and each Party shall be furnished with an irrevocable laboratory access letter granting access to such materials on terms to be agreed in good faith and set out in the laboratory access letter. The original negative of the Film shall belong to the Co-producers jointly as tenants in common in proportion to their respective Contributions.
hh. No Common Management
The Co-producers confirm that they are not linked by common management or control.ii. Registration of the Film
Each Co-producer shall register the Film and all relevant contracts with the relevant national authorities in its own country and shall bear itself the costs of such registration unless such costs are included in the Budget. - Receipts
jj. The Co-producers acknowledge that any and all benefits received from the Relevant Authorities in respect of the Film shall be the sole property of the Co-producer to which such benefit is paid.
kk. All receipts from the exploitation of the Film shall be applied on the basis set out in the Financial Arrangements.
- Credits
The Co-producers agree that there will be accorded in the Film and all paid advertising or publicity issued or paid for by all or any of them in connection with the Film credits. In particular the credits shall mention the nationality of each party hereto and the [ ] version must include the credit:
An [ ]-Anglo Co-production
and the English version of the Film must include the credit:
An Anglo-[ ] Co-production
and the international version must include the credit:
An [ ]-Anglo Co-production
The Co-producers expressly acknowledge the right of any distributor, sub-distributor or assignee of the Film rights hereunder to appear in the credits of the Film.
- Termination and force majeure
ll. If any Co-producer shall:
- commit a material breach of this Agreement and (if capable of remedy) shall fail to remedy the same within 7 days of written notice notifying the breach and requiring its remedy; or
- go into liquidation (other than for the purposes of solvent amalgamation or reconstruction) or become insolvent or bankrupt or have a liquidator, receiver, administrator or other similar official appointed over any of its assets or fail to satisfy any final judgement within 7 days thereof or shall cease to carry on all or a substantial part of its business or anything analogous and having substantially similar effect to any of the foregoing events shall happen under the laws of the jurisdiction of incorporation of any party hereto, the other Parties (the ‘Non-Defaulting Parties') shall provide the Defaulting Party with notice of such default (the ‘Default’) by registered mail and the Defaulting Party shall have eight (8) calendar days from the date of receipt of such notice to cure the Default. If the Defaulting Party fails to cure the Default within such eight (8) day notice period, the Non-Defaulting Parties shall have the right to terminate this agreement, and without prejudice to any other damages available in equity or at law, shall further have the right to substitute the Defaulting Party with another producer of the same nationality as the Defaulting Party (the ‘Replacement Party’) for the purposes of the co-production of the Film. In such event, all amounts contributed to the co-production of the Film by the Defaulting Party up until and including the date of Default, shall be treated as a last priority credit of the Defaulting Party against all proceeds deriving from the exploitation of the Film by the Replacement Party, such credit to be payable to the Defaulting Party only after the Replacement Party has recouped its entire investment in the Film, including, without limitation, financial charges, etc.
mm. If the Co-producers shall be delayed in or prevented from completing and delivering the Film or if either party shall be delayed by or prevented from performing its obligations in accordance with this Agreement by reason of any act delay or omission caused by circumstances beyond its control including (without limitation to the foregoing) strikes, lockouts, labour disputes, labour shortages, accident, fire, explosion or inability to obtain materials, facilities, transportation or power then and in any such event the party so delayed or prevented shall not be liable to the other for such delay or failure nor shall it give rise to a breach of this Agreement. It is further agreed that if any single occurrence as aforesaid shall continue for a consecutive unbroken period of sixty (60) days or more the parties unaffected may terminate the interest of the other party in this Agreement.
nn. The Co-producers agree that in the event of termination of this Agreement, the right, title and interest of the defaulting Co-producer in and to the Film, all physical materials relating to the Film and the production thereof, and all monies in the Production Account shall be transferred to the other Co-producers jointly, without the necessity of further legal formality, but the Co-producers agree that whichever of them is the defaulting Co-producer will forthwith execute any confirmatory documents reasonably required by the other Co-producers.
- No partnership
Nothing in this Agreement is intended to or shall be deemed to constitute a partnership between the Co-producers and save as contained herein no Co-producer shall have any authority to bind the others or pledge the others' credit in any way. - Assignment
Subject to the terms of this Agreement and to each Co-producer's right to associate a third party co-producer to the co-production(provided that any such association does not jeopardize the Film's eligibility for qualification under the Treaty), no Co-producer shall be entitled to assign, charge or license this Agreement or any of its rights hereunder to any third party without the prior approval of the other Co-producers other than each Co-producer's right to enter distribution, sub-distribution, license and rights assignment agreements in its exclusive territory and any right to receive revenues which may be assigned to a subsidiary or associate or parent company or a company succeeding to 100 per cent of the assets of such assigning Co-producer Provided That any such approved assignment, charge or licence shall not relieve the assigning party of its obligations hereunder. - Entire agreement
oo. This Agreement (including the Schedules hereto, which are deemed a part of this Agreement) constitutes the entire agreement between the parties hereto in respect of the subject matter hereof and no terms, obligations, representations, promises or conditions, oral or written, express or implied, have been made or relied upon other than those contained herein.
For the avoidance of doubt each party irrevocably waives any right it may have to seek a remedy for:- any misrepresentation which has not become a term of this Agreement; or
- any breach of warranty or undertaking (other than those contained in this Agreement) whether express or implied, statutory or otherwise;
unless such misrepresentation, warranty or undertaking was made fraudulently.
pp. The parties to this Agreement acknowledge that in the event of a breach of this Agreement any application to enjoin or restrain the production, distribution, exhibition, advertising or exploitation of the Film or any rights therein or derived therefrom would be excessively disruptive and unreasonably damaging to the Film and the other parties' and third party's interests therein and consequently the parties agree not to apply for any such relief and accept that the recovery of damages in an action at law will provide a full and appropriate remedy for any loss or damage incurred by them as a result of any such breach.
qq. No variation of any of the terms or conditions hereof may be made unless such variation is agreed in writing and signed by all of the parties.
- Notices
Any notice required to be given under the provisions of this Agreement shall be in writing and in English, shall be copied by the sender to all of the other Co-producers and shall be deemed to have been duly served if hand delivered or sent by facsimile or other printout communication mechanisms or, within the United Kingdom, by pre-paid special or first class recorded delivery post, or, outside the United Kingdom, by pre-paid international recorded airmail, correctly addressed to the relevant party's address as specified in this Agreement and any notice so given shall be deemed to have been served (unless actually received at an earlier time in which case the time of service shall be the time of such actual receipt):
rr. if hand delivered at the time of delivery;
ss. if sent by facsimile or other print-out communication mechanisms, at completion of transmission if during business hours at its destination, or at the opening of business on the next business day if not during business hours (and for this purpose ‘business hours' means between 09.00 and 17.30 and ‘business day’ means Monday to Friday, excluding bank or other public holidays in the country of the addressee) but subject in the case of facsimile and other print-out communication mechanisms, to proof by the sender that it holds a transmission report indicating uninterrupted transmission to the addressee and in each such case to dispatch of a copy of the notice by pre-paid post as provided above on the same day as such transmission (or the next business day in the country of the sender if such notice is transmitted outside post office hours); or
tt. if sent by pre-paid post as aforesaid, forty-eight (48) hours after posting (exclusive of the hours of Sunday), if posted to an address within the country of posting and seven (7) days after posting if posted to an address outside the country of posting.
- Governing law
This Agreement shall be construed and performed in all respects in accordance with, and shall be governed by, the laws of [ ] and the parties irrevocably submit to the exclusive jurisdiction of the Court of [ ].
IN WITNESSwhereof the parties hereto have executed this instrument the day, month and year first above written.
SIGNED and
DELIVERED by
[ ]
in the presence of:
[ ]
| Name: | [ ] |
| Address: | [ ] |
| Occupation: | [ ] |
SIGNED and
DELIVERED by
[UK CO-PRODUCER]
in the presence of:
[ ]
Schedule 1. Production specifications
The Film shall be a 35 mm sound and colour film provisionally entitled ‘[ ]’ originally recorded in the English language and complying with the following specifications:
- The Film as produced by the Co-producers will accord with the Screenplay save only for such changes as may be agreed between the Co-producers and permitted by the provisions of any agreement relating to the financing and production of the Film.
Film stock: filmed in Kodak with Dolby sound. Aspect ratio: Panavision. - Running time including main and end titles: 100 min.
- Rating:
[ ]: not more restrictive than [ ] United Kingdom: not more restrictive than [ ] - Laboratory:
Schedule 2. Budget
Schedule 3. Cashflow schedule