PIXOVI MOVIE NETOWRK
This agreement (the “Agreement”) entered into as of February 10, 2011 (the “Effective Date”) between OWNER LEGAL NAME (“Owner”) and PIXOVI MOVIE NETWORK (“PIXOVI MOVIE NETWORK”) sets forth the terms of Owner’s engagement of PIXOVI MOVIE NETWORK as Owner’s agent in connection with the licensing, distribution and promotion of the motion CONTENT (in whole or in part) entitled “XYZ” (the “CONTENT”) in the Digital Media, as follows:
PIXOVI MOVIE NETWORK grants OWNER a limited, non-exclusive license to access and use the PIXOVI MOVIE NETWORK Digital Media Delivery Platform for your digital media delivery purposes. This includes the right to view content available on the PIXOVI MOVIE NETWORK Digital Media Delivery Platform. This license is personal to you and may not be assigned or sublicensed to anyone else. PIXOVI MOVIE NETWORK has the right, but not obligation, to advertise and promote the CONTENT, on terms that PIXOVI MOVIE NETWORK deems reasonable in its sole discretion.
You agree to configure the CONTENT only in accordance with parameters provided you by PIXOVI MOVIE NETWORK. You will not, and will not allow anyone else to, open, tamper with or reverse engineer, decompile or disassemble your PIXOVI MOVIE NETWORK Digital Media Delivery Platform (or any software contained within) or make any modifications, additions, attachments or alterations to the PIXOVI MOVIE NETWORK Digital Media Delivery Platform (or any software contained within). Additionally, you agree not to, or attempt to, disclose or circumvent any security measures utilized as part of the PIXOVI MOVIE NETWORK Service or PIXOVI MOVIE NETWORK Digital Media Delivery Platform (or the software contained within). You understand and acknowledge that the PIXOVI Service and PIXOVI MOVIE NETWORK Digital Media Delivery Platform (or the software contained within) incorporate and utilize propriety technologies, materials and Content of PIXOVI MOVIE NETWORK Digital Media Delivery Platform, the Content Providers and other third-party licensors that are protected by copyright, patent, trade secret and other laws and that any use or disclosure of the PIXOVI MOVIE NETWORK Service, Content or PIXOVI MOVIE NETWORK Digital Media Delivery Platform (or the software within) contrary to these Terms of Service or any copying of the materials and/or Content residing in the PIXOVI MOVIE NETWORK Digital Media Delivery Platform will result in substantial damages to us or our licensors and subject you to civil liabilities and/or criminal penalties.
PIXOVI MOVIE NETWORK AGREEMENT
PIXOVI MOVIE NETWORK agrees to use good faith efforts to generate exposure for the CONTENT and to maximize revenue from the streaming VOD CONTENT in the Digital Media, however, PIXOVI MOVIE NETWORK makes no representations or warranties with respect to its ability to advertise and promote the CONTENT or to generate any minimum amount of revenue.
The initial term begins on the Effective Date of the execution of this agreement and continues as long as you have a “distributor account” through PIXOVI MOVIE NETWORK.
REMOVAL OF CONTENT BY PIXOVI MOVIE NETWORK:
PIXOVI MOVIE NETWORK reserves the right to remove any content for any reason and without explanation. PIXOVI MOVIE NETWORK is constantly updating the content that is made available to account holders, and the removal of certain content from the network can happen at any time PIXOVI MOVIE NETWORK decides.
Any decision by PIXOVI MOVIE NETWORK to remove the CONTENT from the PIXOVI MOVIE NETWORK Digital Media Delivery Platform shall be effective immediately and shall not affect PIXOVI MOVIE NETWORK’s right to receive its share of Net Receipts.
PIXOVI MOVIE NETWORK FEE
Twenty-Five Percent (25%) of Net Receipts.
PIXOVI MOVIE NETWORK shall pay to Owner Seventy-Five Percent (75%) of Net Receipts, as set forth below.
As used herein, “Net Receipts” means “Gross Receipts” less deductions for the following: (i) the PIXOVI MOVIE NETWORK Fee(s); (ii) encoding and delivery expenses; (iii) actual, verifiable, third-party credit card processing fees incurred by PIXOVI MOVIE NETWORK; and (iv) any taxes, duties or other amounts payable by law in connection with the distribution of the CONTENT over the PIXOV MOVIE NETWORK Digital Media Delivery Platform.
“Digital Media” means all electronic and digital processes through which the CONTENT may be delivered for viewing, whether now known or hereafter devised, including without limitation as follows:
- through all forms of Internet streaming, digital download, and electronic sell through;
- through all forms of video-on-demand, including without limitation via cable, satellite, Internet, ‘closed-IP ʼ networks, IPTV, telco services, and wireless;
- to mobile and handheld devices whether through wireless telephony and data networks or otherwise;
- to smart TV’s and other internet connected devices with access to the PIXOVI MOVIE NETWORK online portal or mobile application.
ACCOUNTING, REPORTING AND PAYMENT
PIXOVI MOVIE NETWORK 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 PIXOVI MOVIE NETWORK in connection with the CONTENT (the “Reporting Period”). All statements submitted to Owner shall include, at a minimum, transactional data and revenues generated by the CONTENT. Once each year during the Term Owner shall have, on thirty (30) days’ notice, the right to review records supporting PIXOVI MOVIE NETWORK's expenses incurred in connection with the CONTENT.
RESIDULAS AND THIRD PARTY PARTICIPATION
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 CONTENT 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 CONTENT.
Owner shall deliver to PIXOVI MOVIE NETWORK all of the required items set forth on Schedule 2 (the “Essential Materials”). All necessary clearance, preparation, and delivery to PIXOVI MOVIE NETWORK 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 PIXOVI MOVIE NETWORK from making the CONTENT available for distribution, and any delayed performance or non-performance by PIXOVI MOVIE NETWORK arising from Owner’s failure to meet its delivery obligations shall not be a breach hereof.
Owner will deliver to PIXOVI MOVIE NETWORK 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 PIXOVI MOVIE NETWORK, Owner will deliver to PIXOVI MOVIE NETWORK any of the legal documents listed on Schedule 2, no later than thirty (30) days following PIXOVI MOVIE NETWORK’s request.
PIXOVI MOVIE NETWORK will not edit the CONTENT.
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.
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.
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 AND 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 CONTENT 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 PIXOVI MOVIE NETWORK’s rights hereunder.
Owner shall maintain a standard producer’s and distributor’s errors and omissions liability insurance policy in connection with the CONTENT, 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 ($10,000). Such policy shall
remain in effect for a period of three (3) years from the Effective Date. Upon request, Owner shall deliver to PIXOVI MOVIE NETWORK a certificate of insurance evidencing the foregoing.
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. Furthermore, OWNER agrees to indemnify, defend and hold PIXOVI MOVIE NETWORK and its affiliates, officers, agents, co-branders, licensors, partners and employees harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising from the CONTENT.
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 CONTENT or its contents which might impair or interfere with the rights of PIXOVI MOVIE NETWORK.
3. No defects exist in the chain-of-title to the CONTENT which would adversely affect any of PIXOVI MOVIE NETWORK’s rights. Owner has obtained all personal releases and other rights necessary to permit PIXOVI MOVIE NETWORK to exploit the CONTENT, 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 CONTENT, 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 CONTENT or in still images or clips provided by Owner for use in connection with the advertising, promotion, and other exploitation of the CONTENT.
8. The CONTENT, and exploitation of the CONTENT, 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 CONTENT, as well as lists of credit, approval, publicity and advertising obligations and other related materials delivered to PIXOVI MOVIE NETWORK 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 CONTENT.
10. The CONTENT has been validly registered for copyright and is not in the public domain. The
CONTENT as delivered will contain all proper copyright notices required or permitted for protection of the CONTENT under the U.S. Copyright Act and the Universal Copyright Convention.
OWNER LEGAL NAME
1. One (1) copy of the CONTENT in high-quality HD or SD uncompressed format (Quicktime 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 CONTENT on Digibeta or Beta SP.
3. Two (2) copies of the CONTENT on DVD;
4. A metadata form provided by PIXOVI MOVIE NETWORK 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 CONTENT provided as high-resolution digital files.
6. (As available) a trailer fully cleared for use in connection with advertising and publicity related to the CONTENT.
7. One (1) master music cue sheet specifying each musical composition contained in the CONTENT, and, with respect to each composition, the publisher, performer, composer and affiliated performing rights society.
8. Proof of Errors & Omissions liability insurance covering the CONTENT:
- issued by an insurance carrier licensed in the Territory;
- naming PIXOVI MOVIE NETWORK, LLC as an additional insured;
- 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;
- coverage term must be at least three (3) year from the Effective Date.
9. Copies of the copyright certificate for the CONTENT (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.
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 ʼs rights in and to the CONTENT.
12. If available, copies of fully-executed agreements or deal memos for the writer, director, producer, composer and principal cast members of the CONTENT, 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 CONTENT.
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 CONTENT