THIS AGREEMENT is made the [] day of []
BETWEEN
(1)
[] of [insert address] (“Agent”); and
(2)
[] of [inset address] (“Principal”).
BACKGROUND
A
The Principal owns or controls the exclusive distribution rights throughout the
Territory in and to the Film.
B
[The Agent has prior to the date hereof been representing the Film pursuant to the
terms of a Heads of Agreement dated [].]1
C
The Principal now wishes to appoint the Agent on [an exclusive] [a non-exclusive]2
basis to secure binding arrangements for the distribution and exploitation of the Film
in the Territory and the Agent wishes to accept such appointment for the
consideration and on the terms of and conditions of this Agreement.
IT IS AGREED as follows:1
Definitions
1.1
Unless the contrary intention appears, the following definitions apply:
Business Day
a day (other than a Saturday) when banks are open
for business in the United Kingdom;
Commencement Date
the Agent’s representation of the Film under this
agreement shall commence on the date of signature of
this Agreement by both parties;
1
2
Delete if no heads of agreement have been entered into.
Delete as appropriate.
BLP1.3220360.02.VMAN/22867/00002
1
Commission
The commission shall be []% of Receipts arising in
the Territory or such higher percentage of Receipts as
may be applicable by virtue of Clause 6.2;3
Delivery
In respect of the Film the physical delivery to the
Agent in the manner provided in Clause 4;
Designated Account
means the account in the joint names of each of the
Principal and the agent at [insert bank];
Distribution Expenses
all reasonable and proper out of pocket expenses
incurred by the Agent in performance of its obligations
under this Agreement and (save as expressly provided
in this Agreement including without limitation in
Clauses 3.1.3, 4, 9.4 and 12) capped at 5% 4 which
shall be recouped in first position from Receipts;
Film
the documentary film provisionally entitled “[]”
written by [] with a running time of approximately
[] minutes and directed by [] and produced by []
and which is described in more detail in the
Specification set out in Schedule 2 hereto;
Gross Receipts
All monies derived by Local Distributors from the
distribution and exploitation of the Film by any and all
means within the Territory;
Initial Period
The initial period of [] months to commence on the
Commencement Date5;
Licensing Agreement
an agreement [of Agent] [Principal] with a Local
Distributor for the distribution and exploitation by such
Local Distributor of the Film by means of any of the
Media in any part or parts of the Territory;
3
Different percentages of receipts can be applied to different parts of the world. If so, this clause should be
amended.
4 A nominal figure of 5% is listed as the cap. This can be amended as required.
5 This represents the duration of the trial period within which the agent must secure agreements with regard to
distribution of the documentary.
BLP1.3220360.02.VMAN/22867/00002
2
Local Distributor
a distributor or licensee to whom the Agent grants the
right to exploit the Film by means of any of the Media
in any part or parts of the Territory;
Media
Shall mean all media now known or hereafter devised
including without limitation theatrical, non theatrical,
free television, pay television, pay per view, home
video but excludes merchandising publishing 'behindthe-scenes' book and television documentary and
soundtrack album exploitation;
Receipts
All receipts revenue and income of every kind payable
under any Licensing Agreement and payable into the
Designated Account to include any non-refundable
advance or minimum guarantee on account thereof
net of all withholding taxes, sales taxes, VAT and other
fees and expenses reasonably and properly due to any
Local Distributors;
the Rights
any and all rights as set out in clause 2.1 hereof;
Rental and Lending
all rights of contributors to or participants in the Film
Rights
(the “Participants”) to authorise, prohibit, control or
receive money from the rental lending reproduction or
other exploitation of the materials, results and
proceeds of the Participants' services to the Film as
may be conferred upon the Participants under
applicable laws, regulations or directives in any
jurisdiction throughout the world;
6
Term
[] years from the Commencement Date;
Territory
[the World.]6
More restricted territories can be listed instead.
BLP1.3220360.02.VMAN/22867/00002
3
2
Appointment
2.1
The Principal hereby appoints the Agent throughout the Territory for the Initial
Period as the Principal’s exclusive agent to exhibit, distribute, broadcast, license,
sub-distribute, market, exploit, sell, advertise, publicise, perform, dispose of, turn to
account and otherwise deal in or with the Film and to license such rights to others
and/or any part thereof or rights therein or thereto in such manner and in and by
any of the Media.
2.2
In the event that at the expiry of the Initial Period the Agent has not entered into
any agreements in relation to the Film [and/or in the event that the Principal has
not secured minimum aggregate Receipts of [GBP£] [US$] from sales of the
Film,] it is agreed that the appointment of the Agent under this agreement shall
(without prejudice to the Agent's rights to receive Commission on Receipts
generated by the Agent during the Initial Period) terminate at the expiry of the
Initial Period.
2.3
Subject always to clause 2.2, the Agent shall have the exclusive right throughout
the Territory for the Term to sell, market and exploit the Rights with respect to the
Film by any and every means now known or hereafter devised and in any and all
Media.7
2.4
During the Term, the Principal shall not circumvent or arrange for distribution of the
Film except through the Agent and shall not itself exercise or exploit, or authorise
any third party to exercise or exploit, any rights in or to the Film in or by any of the
Media anywhere in the Territory.8
2.5
During the Initial Period and notwithstanding the definition of "Media" set out at
clause 1, the Principal agrees and undertakes that it shall not itself exercise or
exploit, or authorise any third party to exercise or exploit:
2.5.1
any merchandising and/or soundtrack album rights relating to the
Film, except with the prior written consent of the Agent such consent
not to be unreasonably withheld or delayed;
2.5.2
any right(s) to produce, publish and/or distribute any "behind the
scenes" book and/or any television documentary relating to the Film,
except after due consultation with the Agent. 9
7
8
9
Delete this clause if the agent is not the exclusive agent for distribution of the documentary.
Delete this clause if the agent is not the exclusive agent for distribution of the documentary.
Delete this clause if the agent is not the exclusive agent for distribution of the documentary.
BLP1.3220360.02.VMAN/22867/00002
4
3
Agents Obligations
3.1
In consideration of the appointment and the Commission, the Agent agrees that it
shall render all services customarily rendered by a first-class agent in the film
industry including but not limited to the foregoing:
3.1.1
agreeing a policy and consulting fully with the Principal with regard to
the promotion, marketing, sale and distribution of the Film and the
exploitation of the Rights herein granted;
3.1.2
soliciting, negotiating and documenting all agreements with Local
Distributors in respect of the exploitation of the Film by means of the
Media in the Territory, monitoring and supervising the marketing and
distribution of the Film by such Local Distributors and taking all
reasonable steps to collect any receipts due from such Local
Distributors from exploitation and distribution of the Film;
3.1.3
delivering the Film to the distributors under the Licensing Agreements
provided that any associated costs shall be treated as Distribution
Expenses but not subject to the 5% cap;
3.1.4
undertaking to perform its obligations as the Principal's sole and
exclusive agent in respect of the Film to the best of its ability and
undertaking to use all reasonable endeavours to obtain the highest
Receipts and the best terms that may be commercially obtainable.
4
Delivery
4.1
The Principal agrees that it shall deliver the completed Film to the Agent or to a
laboratory appointed by the Principal, on or before the date of Delivery provided
always that the cost of delivery shall be funded solely from Receipts or borne by
Local Distributors or shall, if borne by the Agent, be recoupable from Receipts as
Distribution Expenses (but not subject to the 5% cap).
4.2
The Principal will furnish to the Agent a laboratory access letter in the Agent's
favour signed by the Principal and the applicable laboratory relating to the
production of print and preprint materials of the Film solely for the purpose of
enabling the Agent to procure prints for Local Distributors of the Film pursuant to
the Licensing Agreements. All costs of print and other materials ordered shall be
paid by the Local Distributor or, as recoupable Distribution Expenses not subject to
the 5% cap, by the Agent.
BLP1.3220360.02.VMAN/22867/00002
5
5
Distribution
5.1
The Agent shall have complete authority to distribute the Film and to license the
exhibition thereof throughout the Territory in accordance with such sales methods,
policies and terms as it may, in its discretion, determine, subject to the reasonable
requirements of the Principal.
5.2
The Agent shall consult fully and meaningfully with the Principal concerning all
material aspects of the distribution of the Film and will seek and in good faith take
account of the views of the Principal. The Agent shall not have the right to enter
into any licence agreement for a particular territory below the applicable minimum
price for that territory which is set out in Schedule I without having first obtained
the Principal's prior written consent. The Principal's failure to respond within five
business days (or two business days during film markets) shall be deemed an
acceptance of the contract terms communicated.
5.3
The Agent undertakes to furnish to the Principal copies of all contractual
arrangements which it shall make pursuant to clause 5.2 hereof as soon as possible
after execution thereof and agrees to keep the Principal fully informed at all times
of all negotiations and arrangements undertaken by it in connection with the
exploitation of the Film.
5.4
Save as provided in Clause 5.5, the Agent shall not itself and shall not authorise or
permit any Local Distributor to cut, edit or otherwise alter the Film or the main or
end titles of the Film provided always that the Agent may permit the subtitling and
dubbing of the Film in any language (other than English) as may be reasonably
required by any Local Distributor and may allow such Local Distributor to insert
before the credits of the Film the name of the Local Distributor as the distributor of
the Film in its territory.
5.5
In the event that the censor or the regulations of any competent regulatory
authority in the territory of the Local Distributor require(s) cuts or alterations or
eliminations to be made to the Film before permitting it to be exploited in its
territory, the Agent shall be entitled forthwith to cause such cuts or alterations or
eliminations to be made in accordance with such requirements but shall not under
any circumstances allow any copyright notice or credits to be cut. The Agent shall
have the right to authorise distributors to change the title of the Film subject to the
Agent's prior written approval, such approval to be given only after prior
consultation with the Principal.
BLP1.3220360.02.VMAN/22867/00002
The Principal shall notify the Agent of any
6
restrictions affecting the dubbing, substituting or editing of the Film and the Agent
will comply with the same.
5.6
The Agent may appoint any sub-agent in relation to the exploitation of the Film and
for the avoidance of doubt the Commission shall not include any fees, commissions
and expenses of any sub-agent and all such fees, commissions and expenses of any
sub-agent shall be paid from Gross Receipts.
5.7
The Agent shall not without the Principal's prior written consent enter into any
agreement with a Local Distributor for the exploitation of the Film for a distribution
term in excess of the Term.
6
Receipts
6.1
The Agent agrees and acknowledges that all Licensing Agreements shall provide for
the payment of the Receipts and all monies or other consideration payable
thereunder directly into the Designated Account.
In the event that the Agent
receives any sum which constitutes Receipts directly, the Agent shall hold such
sums on trust and shall immediately deposit such sums into the Designated
Account. The Agent shall invoice the Principal for the Distribution Expenses and
Commission it is entitled to receive hereunder, which shall be paid out of the
Designated Account.
6.2
In the event that any sale(s) of the Film to Local Distributors result(s) in the
Requisite Amount of Receipts being paid by the relevant Local Distributors into the
Designated Account, then the Agent shall thereafter be entitled to receive
commission of []% on all subsequent Receipts. For this purpose, the expression
"Requisite Amount of Receipts" means an amount equal to the aggregate of
the minimum sale prices set out in Schedule 1 and, if applicable, additional Receipts
sufficient to meet all of the Principal's deferral obligations in relation to the
production of the Film.
6.3
For the avoidance of doubt, the Agent's entitlement to receive amounts of
Commission under this Agreement shall apply irrespective of when the relevant
Receipts are paid into the Designated Account by Local Distributors and shall
survive any termination of this Agreement in relation to sales of the Film concluded
by the Agent prior to such termination.
BLP1.3220360.02.VMAN/22867/00002
7
7
Application of Receipts
Receipts shall be paid into the Designated Account and shall be paid and applied in
the following manner and order :
7.1
In reimbursement of any costs and expenses properly and reasonably incurred by
the Agent and which are expressly stated in this Agreement not to be subject to the
5% cap on Distribution Expenses; and
7.2
In reimbursement of all other Distribution Expenses to the Agent; and
7.3
to the Agent in satisfaction of the Commission; and
7.4
thereafter for the benefit of the Principal.
8
Reports and accounting
8.1
The Agent shall maintain adequate books of account and shall prepare and deliver
to the Principal statements of account of all sales made and Distribution Expenses
incurred quarterly.
8.2
In relation to the Designated Account the Principal and the agent shall maintain all
books, accounts and records relating to the receipt of all Principal’s Receipts and
the payment therefrom of all Distribution Expenses and Commission.
8.3
The Principal shall permit the Agent to audit and/or inspect the Principal's books of
account insofar as they relate to sales of the Film twice in any calendar year, such
audit and/or inspection to be made on reasonable notice during normal business
hours and at the Agent's cost.
9
Principal's warranties
The Principal represents and warrants to the Agent that:
9.1
the Principal has the right to enter into this Agreement and to grant the rights
herein expressed to be granted and fully to perform its obligations hereunder, and
the Principal has not entered into and shall not enter into any agreement or do any
actual thing which would cut down or restrict free exercise by the Agent of its rights
under this Agreement;
9.2
the Principal is vested with all rights in the Film required for the Agent's exercise
and enjoyment of all rights granted to the Agent hereunder;
BLP1.3220360.02.VMAN/22867/00002
8
9.3
the Principal is the sole and unencumbered legal and beneficial owner with full title
guarantee of all rights of copyright in the Film and is the sole “author” of the Film
within the meaning of the Copyright Designs and Patents Act of 1988 and
throughout the making of the Film was at all material times “a qualifying person”
within the meaning of that act and controls and throughout the period of this
Agreement shall control on an exclusive and unencumbered basis all rights
necessary to grant to the Agent the rights granted pursuant to this Agreement.
9.4
nothing contained in the Film is obscene, libellous or defamatory and no part of the
Film nor the exercise by the Agent of any of the rights herein granted to the Agent
will, to the best of the Principal's knowledge and belief having made due and
diligent enquiry, violate or infringe any copyright, trademark, trade name, patent,
literary, intellectual, artistic or dramatic right or any rights of publicity or privacy or
civil property or any other rights whatsoever;
9.5
the Film has not previously been commercially exploited in whole or in part by
means of the Media in the Territory;
9.6
at the date of this Agreement there is no litigation pending or threatened against
the Principal which might affect the Principal's ability to perform its obligations
under this Agreement;
9.7
neither the Principal nor the Agent shall disclose to any third parties (other than
professional advisers where necessary) any of the terms of this Agreement or any
matters relating to the business of the Agent or Principal;
9.8
the Principal hereby indemnifies and holds harmless the Agent and agrees to keep
the Agent fully and effectually indemnified from and against any and all liability,
actions, claims, demands, proceedings, losses, costs and expenses (including
reasonable legal and other professional fees) occasioned directly or indirectly as a
consequence of any material breach, non-performance or non-observance by the
Principal of any of the agreements, conditions, undertakings and warranties on the
part of the Principal contained herein, or otherwise arising out of or relating to any
failure by the Principal to fulfil any of its obligations hereunder;
10
Agent's undertakings
The Agent hereby warrants and represents to the Principal that:
BLP1.3220360.02.VMAN/22867/00002
9
10.1
the Agent has the right to enter this Agreement and to perform its obligations
hereunder;
10.2
the Agent will ensure full compliance on a timely basis with all its obligations under
any and all Licensing Agreements entered into by the Agent in accordance with this
Agreement save where the performance of any such obligation is dependent on any
act required to be performed by the Principal or by any contributor to the Film or on
the compliance with or observance of any provision of this Agreement by the
Principal;
10.3
the Agent hereby indemnifies and holds harmless the Principal and agrees to keep
the Principal fully and effectually indemnified from and against any and all liability,
actions, claims, demands, proceedings, losses, costs and expenses (including
reasonable legal and other professional fees) occasioned directly or indirectly as a
consequence of any material breach, non-performance or non-observance by the
Agent of any of the agreements, conditions, undertakings and warranties on the
part of the Agent contained herein, or otherwise arising out of or relating to any
failure by the Agent to fulfil any of its obligations hereunder.
11
Credits
11.1
All prints of the Film and all paid advertising issued in the Territory shall contain
such credits as the Principal shall have notified to the Agent.
The Agent shall
contractually require all Local Distributors to observe such credits but shall not be
responsible for any failure on their part to do so. No failure on the part of the
Agent or the Local Distributors to comply with the provisions hereof shall constitute
a breach of this Agreement or entitle the Principal to injunct or restrain the
exploitation of the Film or the publicity thereof or terminate this Agreement or any
agreement with respect to the Film.
12
Copyright
The Agent shall at the request of the Principal undertake all steps as the Principal
may reasonably request to register the copyright in the Film in any part of the
Territory and shall recover all costs as authorised Distribution Expenses save that
any such costs shall not be subject to the 5% cap applicable to Distribution
Expenses.
BLP1.3220360.02.VMAN/22867/00002
10
13
Promotional activities
The Principal shall supply (at no cost) to the Agent such information and marketing
and promotional materials in relation to the Film and/or the key personnel involved
in its production as the Agent may reasonably request for use by the Agent in order
to market and promote the Film and shall make available to the Agent, for
promotional and marketing appearances, such persons (including, without
limitation, the director, producer and any and/or all of the actors) as the Agent may
reasonably require in order to promote and market the Film PROVIDED ALWAYS
that the Agent acknowledges and agrees that any such appearances are subject to
the relevant person’s prior commitments and availability and good faith negotiations
regarding their reasonable travel accommodation and personal expenses and the
availability of funding to cover the same.
14
Default
14.1
Events of Default
The following shall each constitute an “Event of Default”:
14.1.1
any material breach or default by a party of any material term or
provision of this Agreement, provided that no such breach or default
shall constitute an Event of Default under this paragraph unless the
relevant party notifies the defaulting party of the alleged Event of
Default and the defaulting party fails to cure same within [30] 10 days
of the notice; or
14.1.2
The appointment of a receiver, liquidator or administrator for all or a
substantial part of a party’s assets;
14.1.3
the obtaining by a party of any final judgement against the other
which shall remain unsatisfied for a period of 90 days.
14.2
Termination
If at any time an Event of Default occurs in relation to either party (the "defaulting
party"), which is not remedied by the defaulting party pursuant to clause 14.1.1 the
other party shall have the right, at any time, in addition to all of its other rights and
10
A longer “cure period” may be preferable.
BLP1.3220360.02.VMAN/22867/00002
11
remedies, to terminate this Agreement by notice in writing to such effect to the
defaulting party.
15
Further assurance
Each party shall from time to time as requested by the other do such additional
deeds and execute such additional documents as may be necessary or required to
carry out the intention of this Agreement.
16
Notices
Any notices or other documents required to be given under the provisions of this
Agreement shall be in writing and shall be addressed or directed to the party
intended to receive the same at its address provided for at the head of this
Agreement. All such notices shall be given in one of the following ways: (i)
personal delivery; (ii) by pre-paid first class mail; (iii) by facsimile transmission. If
so delivered, mailed, transmitted each notice shall be deemed to have been duly
served:
16.1
if hand delivered at the time of delivery;
16.2
if sent by prepaid post as aforesaid within two Business Days of posting if posted to
an address within the country of posting and seven Business Days of posting if
posted to an address outside the country of posting; and
16.3
if sent by facsimile on a Business Day the same day if sent during normal business
hours at its destination or the next following Business Day if sent outside normal
business hours at its destination but subject to proof by the sender that it holds a
transmission report showing uninterrupted transmission of the notice.
17
Miscellaneous
The Principal acknowledges that unless specifically set forth in this Agreement no
representations have been made by the Agent concerning the amount of income
the Film will generate. Each party further acknowledges that the other party is not
responsible for breach or non-performance of any distributor, laboratory,
transportation agency or other entity not a party to this Agreement.
18
No partnership
BLP1.3220360.02.VMAN/22867/00002
12
Nothing herein contained shall be construed or deemed to constitute a partnership
or joint venture between the parties hereto and save as expressly herein provided
no party shall hold itself out as the agent of the other.
19
Assignment
The Parties shall not have the right to assign this Agreement or any of its rights or
obligations hereunder without the other’s prior written consent such consent not to
be unreasonably withheld or delayed.
20
Entire agreement
This Agreement (including the schedule incorporated by reference) replaces,
supersedes and cancels all previous arrangements, understandings, representations
or agreements between the parties hereto either oral or written with respect to the
subject matter hereof and expresses and constitutes the entire agreement between
the Principal and the Agent with reference to the terms and conditions of the
engagement of the Agent in connection with the Film and no variation of any of the
terms or conditions hereof may be made unless such variation is agreed in writing
and signed by both of the parties hereto.
21
No waiver
21.1
No failure or delay on the part of either of the parties relating to the exercise of any
right, power or remedy provided under this Agreement shall be construed as a
waiver of such right, power or remedy or as a waiver of any preceding or
succeeding breach by the other party to this Agreement nor shall any single or
partial exercise of any right, power or remedy preclude any other or further
exercise of such or any other right, power or remedy provided in this Agreement all
of which are several and cumulative and are not exclusive of each other or of any
other rights or remedies otherwise available to a party at law or in equity.
22
Partial unenforceability
If any clause or any part of this Agreement or the application thereof to either party
shall for any reason be adjudged by any court or other legal authority or competent
jurisdiction to be invalid, such judgment shall not affect the remainder of this
Agreement which shall continue in full force and effect.
BLP1.3220360.02.VMAN/22867/00002
13
23
Governing law
This Agreement shall be governed by and construed in accordance with the laws of
England. The exclusive jurisdiction and venue for arbitration which shall be the sole
means of resolving disputes arising out of this contract shall be in London, before a
sole arbitrator in accordance with the arbitration rules and procedures of the AFMA
'American Film Marketing Association'.
24
Clause headings
The 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.
Signed by the duly authorised representative of the parties on the date of this document.
Signed by ________________________
)
For and on behalf of
)
[insert Agents name]
)
Signed by ________________________
)
For and on behalf of
)
[insert Principals name]
)
BLP1.3220360.02.VMAN/22867/00002
14
SCHEDULE 1
Minimum Prices
BLP1.3220360.02.VMAN/22867/00002
15
SCHEDULE 2
SPECIFICATION11
The Film:
1
has been photographed using live action using [35mm raw stock negative film on a
full frame negative] [other media]*;
2
has a running time (including main and end titles) of not less than [] minutes, but
no more than [] minutes;
3
[conforms with the draft dated [] of the screenplay written by [] (save for minor
and incidental changes that do not change the story, theme or current
characterisations of that screenplay) telling a continuous story with all necessary
dialogue (which dialogue shall be originally recorded in English language), music,
lyrics and sound effects, fully edited, titled, assembled with the soundtrack fully
synchronised with the photographic action thereof;]*
4
has been directed by[] and produced by [];
5
[other];
11
Amend as necessary.
BLP1.3220360.02.VMAN/22867/00002
16
DATED
[]
[]
As Agent
[]
As Principal
SALES AGENT’S AGREEMENT