Appendix | C
Sample Digital Sales Agreement
SAMPLE VOD AGREEMENT
* This sample agreement is provided for educational purposes only.
This agreement (the “Agreement”) entered into as of February 10, 2011 (the ‘Effective Date”) between OWNER LEGAL NAME (“Owner”) and XXX (“XXX”) sets forth the terms of Owner’s engagement of XXX as Owner’s agent in connection with the licensing, distribution and promotion of the motion picture (in whole or in part) entitled “XYZ” (the “Picture”) in the Digital Media, as follows:
Owner Agreement |
Owner hereby appoints XXX to act as Owner’s exclusive (or nonexclusive) agent in connection with (i) the licensing, distribution and other exploitation of the Picture in the Digital Media throughout the Territory and for the Term, and (ii) the advertising and promotion of the Picture (the “Advertising Rights”) in all media now known or hereafter devised (to the extent such advertising and promotion reasonably relates to the exploitation of the Picture in the Digital Media and/or the promotion of distributors, portals, vendors, exhibitors or other parties licensed to exploit the Picture). As Owner’s agent and on Owner’s behalf, XXX has the right to enter into licensing, distribution and other agreements with third parties for the exploitation of the Picture in the Digital Media (“Distribution Agreements”) and for the Advertising Rights, on terms that XXX deems reasonable in its sole discretion. |
XXX Agreement |
XXX agrees to use good faith efforts to generate exposure for the Picture and to maximize revenue from the licensing, distribution and other exploitation of the Picture in the Digital Media, however, XXX makes no representations or warranties with respect to its ability to obtain Distribution Agreements or to generate any minimum amount of revenue. |
Term |
The initial term shall be three (1-3) years from the Effective Date with successive one (1) year extensions unless either party issues notice, in writing, of its intent to cease such extensions al least sixty (60) days prior to the end of the then-current annual period. Any decision not to extend the Term shall be effective prospectively and shall not affect Distribution Agreements entered into by XXX, including without limitation XXX’s right to receive its share of Gross Receipts attributable to Distribution Agreements. |
Territory |
Worldwide. |
XXX Fee |
Twenty-Five Percent (25%) of Gross Receipts. |
Owner Share |
XXX shall pay to Owner One Hundred Percent (100%) of Net Receipts, as set forth below. |
Gross Receipts |
As used herein, “Gross Receipts” shall mean all non-refundable sums actually received by XXX from the licensing, distribution and exploitation of the Picture. |
Net Receipts |
As used herein, “Net Receipts” means “Gross Receipts” less deductions for the following: (i) the XXX Fee; (ii) actual, verifiable, third-party expenses incurred by XXX in connection with the marketing, promotion, distribution, or other exploitation of the Picture, including without limitation encoding and delivery expenses; (iii) actual, verifiable, third-party collection and/or audit costs incurred by XXX in connection with review of third party licensees of the Picture; and (iv) any taxes, duties or other amounts payable by law in connection with the distribution of the Picture. |
Digital Media |
“Digital Media” means all electronic and digital processes through which the Picture may be delivered for viewing, whether now known or hereafter devised, including without limitation as follows:
(i) through all forms of Internet streaming, digital download, and electronic sell through;
(ii) through all forms of video-on-demand, including without limitation via cable, satellite, Internet, ‘closed-IP’ networks, IPTV, telco services, and wireless;
(iii) through so called “disc on demand,” “manufacture on demand,” and similar fulfillment services;
(iv) to mobile and handheld devices whether through wireless telephony and data networks or otherwise;
(v) to hotels, educational institutions, libraries, and airlines and ships registered in and/or flying the flag of any country in the Territory. |
Accounting, Reporting and Payment |
XXX will deliver to Owner accounting statements, accompanied by payment of Net Receipts (if any), no later than ninety (90) days following the end of any calendar quarter in which Gross Receipts are received by XXX in connection with the Picture (the “Reporting Period”). All statements submitted to Owner shall include, at a minimum, transactional data and revenues generated by the Picture by each individual licensee (as reported to XXX by each such licensee). Once each year during the Term Owner shall have, on thirty (30) days notice, the right to review (a) the results of any audit conducted by XXX of third parties to the extent such audit relates solely to the Picture’s Gross Receipts, (b) all records from third parties related to the Picture’s Gross Receipts, and (c) records supporting XXX s expenses incurred in connection with the Picture. |
Residuals & Third Party Participations |
Owner will be solely responsible for any and all residual and other additional or supplemental payments payable to any union, guild or other entity (e.g., SAG, DGA, WGA, IATSE, AFM) required to be made by reason of the licensing, distribution, or other exploitation of the Picture and the Advertising Rights as set forth herein. Owner will be responsible for paying all third party participations granted by Owner in connection with the Picture. |
Delivery |
Owner shall deliver to XXX all of the required items set forth on Schedule 2 (the “Essential Materials”). All necessary clearance, preparation, and delivery to XXX of Essential Materials shall be at Owner’s sole cost and expense. Owner acknowledges and agrees that Owner’s failure to timely deliver Essential Materials may prevent XXX from making the Picture available for distribution, and any delayed performance or non-performance by XXX arising from Owner’s failure to meet its delivery obligations shall not be a breach hereof. |
Schedules |
Owner will deliver to XXX a signed copy of the attached Schedule 1 (the “Producer Certificate”) together with this Agreement. The Producer Certificate and the Essential Materials together shall be referred to herein as the “Materials.” In addition, if requested by XXX, Owner will deliver to XXX any of the legal documents listed on Schedule 2, no later than thirty (30) days following XXX’s request. |
Editing |
XXX will not edit, and will not permit third parties to edit the Picture except for the following purposes: (i) to prepare closed captioned, subtitled and/or dubbed versions the Picture; (ii) to avoid legal liability or conform the Picture to applicable laws, standards and practices; (iii) to present the Picture in serial form without altering its linear form; (iv) to compress the Picture and/or the credits as required by any third party licensee in connection with time limitations in a manner then customary in the motion picture industry; and (v) to create advertising and publicity materials for the Picture |
Confidentiality |
Other than as required by law, governmental authority, or to enforce its rights hereunder, neither party will, without the express written consent of the other party, disclose the terms of this Agreement or any other business information shared by the other party which should reasonably be understood to be confidential, except to its attorneys, agents, accountants, investors, lenders, or directors on a “need-to-know” basis, provided that such persons are similarly required to keep such information confidential. |
Waiver |
No waiver by either party of any provision of this Agreement or of any breach or default by the other party shall constitute a continuing waiver, and no waiver shall be effective unless made in a signed writing. |
Assignment |
Either party may assign any or all of its rights and/or obligations pursuant to this Agreement in the event that (i) it acquires or merges with another corporation or entity; (ii) all or substantially all of its assets are acquired by a third party; or (iii) it is involved in a consolidation, reorganization or similar transaction. |
Representations & Warranties |
Each of the parties represents and warrants the following: (i) that it is a duly organized, validly existing corporation or other legally recognized business organization in good standing under the laws of its jurisdiction of incorporation or formation, and (ii) that it has the full legal right, power, and authority to execute this Agreement and to perform its obligations hereunder, and the consent of no other person or entity is necessary in connection with the foregoing. Owner further represents and warrants that it has obtained all rights and clearances necessary to exploit the Picture and all elements contained therein (as further set forth in the attached Schedule 1 and incorporated by reference herein) and that Owner has not entered into and will not enter into any agreement in conflict with XXX’s rights hereunder. |
Insurance |
Owner shall maintain a standard producer’s and distributor’s errors and omissions liability insurance policy in connection with the Picture, in the minimum amounts equivalent to one million dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) in the aggregate, with a deductible of not more than ten thousand dollars (510,000). Such policy shall remain in effect for a period of three (3) years from the Effective Date. Upon request, Owner shall deliver to XXX a certificate of insurance evidencing the foregoing. |
Indemnification |
Each party agrees to defend, indemnify and hold harmless the other from any claim, action, judgment or liability of any kind arising out of or in connection with any breach or alleged breach of any representation, warranty or agreement made by either party in this Agreement. |
Owner’s Contact Information |
|
By signing below, the parties agree to the terms set forth above.
XXX, LLC |
OWNER LEGAL NAME |
____________________ |
________________________ |
Name:
Title: |
Name:
Title: |
SCHEDULE 1
PRODUCER CERTIFICATE – “FILM TITLE”
1. Owner has sole and full power and authority to execute the attached Agreement.
2. There are no current or outstanding claims, liens, encumbrances, limitations, or restrictions or rights of any nature in or to the Picture or its contents which might impair or interfere with the rights of XXX.
3. No defects exist in the chain-of-title to the Picture which would adversely affect any of XXX’s rights. Owner has obtained all personal releases and other rights necessary to permit XXX to exploit the Picture, including without limitation rights to the underlying literary rights and so called “life rights.”
4. Owner has obtained all necessary synchronization, public performance, master use and other rights necessary for use of musical compositions or recordings embodied in the Picture, and all royalties or fees payable under such licenses have been and will be fully paid by Owner.
5. Owner has paid all production costs, including, without limitation, all salaries, royalties, license fees, service charges and laboratory costs, and no such costs are currently outstanding.
6. Owner was, is, and shall be in full compliance with all applicable state and federal laws, as well as all regulations and requirements of any applicable union or guild.
7. Owner has obtained written authorization from all persons or entities whose names, voices, photographs, likenesses, works, services and materials appear in the Picture or in still images or clips provided by Owner for use in connection with the advertising, promotion, and other exploitation of the Picture.
8. The Picture, and exploitation of the Picture, will not violate or infringe upon any right or interest of any party, including without limitation the trademark, trade name, copyright, literary, dramatic, music, civil or property right, or right of privacy, or constitute libel, slander, defamation, invasion of privacy or unfair competition.
9. The credits contained in the Picture, as well as lists of credit, approval, publicity and advertising obligations and other related materials delivered to XXX by Owner are complete and accurate, and contain all relevant instructions for crediting any person’s name, likeness or photograph in advertising, publicity or exploitation of the Picture.
10. The Picture has been validly registered for copyright and is not in the public domain. The Picture as delivered will contain all proper copyright notices required or permitted for protection of the Picture under the U.S. Copyright Act and the Universal Copyright Convention.
OWNER LEGAL NAME
By:_________________________
Print Name:___________________
Title:
SCHEDULE 2
REQUIRED ITEMS
Video:
1. One (1) copy of the Picture in high-quality HD or SD uncompressed format (Quicklime preferred; 16:9 aspect ratio) on either data DVDs or external hard drive, or;
2. if the foregoing is not available, one (1) copy of the Picture on Digibeta or Beta SP.
3. Two (2) copies of the Picture on DVD;
4. A metadata form provided by XXX subsequent to execution of this Agreement, to be completed by Owner.
Marketing & Promotional:
5. (As available) any publicity slides or poster art in the rightful possession of Owner and fully cleared for use in connection with advertising and publicity related to the Picture provided as high-resolution digital files.
6. (As available) a trailer fully cleared for use in connection with advertising and publicity related to the Picture.
Documentation:
7. One (1) master music cue sheet specifying each musical composition contained in the Picture, and, with respect to each composition, the publisher, performer, composer and affiliated performing rights society.
8. Proof of Errors & Omissions liability insurance covering the Picture:
a. issued by an insurance carrier licensed in the Territory;
b. naming XXX, LLC as an additional insured;
c. with minimum limits of at least $1,000,000 for any claim arising out of a single occurrence and $3,000,000 for all claims in the aggregate with a deductible no more than $10,000;
d. coverage term must be at least three (3) year from the Effective Date.
9. Copies of the copyright certificate for the Picture (and, as applicable, the screenplay) in the United States, OR if a certificate is not available to Owner at the time of delivery, a copy of the copyright application (Form PA), accompanied by proof of payment of the copyright application fees.
OPTIONAL ITEMS
10. If available, bonus material (such as interviews with personnel, bloopers, deleted scenes, etc.) subject to the same representations and warranties regarding rights and clearances set forth in the attached Agreement and Schedule 1, and submitted in the formats described in #1 above.
11. If available, chain-of-title verification of Owner’s rights in and to the Picture.
12. If available, copies of fully-executed agreements ordeal memos for the writer, director, producer, composer and principal cast members of the Picture, as well as all other cast members, talent and personnel who are afforded credit on-screen in the main and end titles or the billing block, along with a key cast and crew contact list.
13. If available, copies of music publishing licenses, master use licenses and other rights and clearances for the Picture.
14. If available, a complete statement setting forth the names of all persons to whom Owner is contractually obligated to accord credit and/or likeness in any advertising, publicity or exploitation of the Picture.
