A. Representation Provisions

• 1. DEFINED TERMS: Terms with initial capitals are Defined Terms. If not defined where they first appear, Defined Terms are defined in the IFTA^® International Schedule of Definitions and the IFTA^® International Schedule of Territories current as of the Effective Date, or otherwise by industry standard custom and practice.
• 2. APPOINTMENT: On the terms of this Agreement, Producer appoints Sales Agent to act, and Sales Agent agrees to act, as Producer’s exclusive agent during the Agency Period with sole authority to negotiate and conclude license agreements on behalf of Producer with third parties (“Distributors”) for exploitation of the Distribution Rights and Allied Rights in the Picture throughout the Territory in the Authorized Languages during the Distribution Term (“Distribution Agreements”) and otherwise to represent the Picture as authorized in this Agreement. During the Agency Period, Producer will not negotiate or conclude any Distribution Agreement, but will refer all inquiries regarding any Distribution Agreement to Sales Agent. Producer acknowledges the Initial Delivery Date for the Picture (per Paragraph 20.1) is [_____________].
• 3. PICTURE: The Picture means the motion picture currently titled [___], a [feature length] [theatrical / made-for-video / made-for-television motion picture], whose country of origin is [___], produced by [___], directed by [___], starring [principal star(s) in the role(s)________] and based on an original screenplay [dated __________] written by [________] [from underlying material written by ____________], shot in [color / B&W] on [16 mm film / 35 mm film / digital cinema], primarily in the [English] language, formatted for a [theatrical / television] running time of not less than [90 / 96 / ___] minutes [or more than 120 minutes], entirely shot, finished and assembled, with fully synchronized sound, music and effects, with no more than incidental stock footage, [telling a complete story / as screened on _______________], [capable of receiving an MPAA/CARA rating no more restrictive than “R”], and ready in all respects upon its Delivery for immediate exploitation of all Distribution Rights throughout the Territory. The Picture includes all available versions, such as a director’s cut, airline version, and all available bonus materials and outtakes.
• 4. TERRITORY AND LANGUAGE:
  • 4.1 Territory: The Territory means all of the following: [_______________] [excluding _______________].
  • [4.2. Major Territories: For purposes of this Agreement, the following are Major Territories: _______________.]
  • [4.3. Domestic and International Territory: For purposes of this Agreement the Domestic Territory is: _______________. The International Territory is the Territory excluding the Domestic Territory.]
  • 4.4 Changes in Territory: Each country in the Territory means the country as its political borders exist on the Effective Date along with its then existing territories, possessions and protectorates. If during the Agency Period an area separates from a country in the Territory, then the Territory will still include the entire area which formed one political entity as of the Effective Date of this Agreement. If during the Agency Period an area is annexed to a country in the Territory, then Producer grants Sales Agent a right of First Negotiation to become the exclusive sales agent for the Distribution Rights in the Picture through the end of the Agency Period in the newly annexed area to the extent such rights become available. Sales Agent may include comparable provisions in all Distribution Agreements.
  • 4.5 Non-Contiguous Areas: Non-Contiguous Areas mean embassies, military and government installations, oil rigs and marine drilling sites, airlines-in-flight and ships-at-sea flying the flag of a country but not located within its contiguous geographic borders. The Territory does not include the Non-Contiguous Areas of other countries located within the Territory, but does include Non-Contiguous Areas of each country in the Territory as necessary for exploiting any particular Distribution Rights.
  • 4.6 Authorized Languages: The Authorized Languages are all Local Languages in each country in the Territory [except _________ ___________]. Where a Territory is designated as a specific language territory (e.g., French Speaking) then the Authorized Languages for such Territory are only the designated languages.

• 5. AGENCY PERIOD AND DISTRIBUTION TERM:
  • 5.1 Agency Period: The Agency Period means the period starting on the Effective Date and continuing until [_____ (___)] years after the earlier of Delivery of the Picture to Sales Agent in accordance with Paragraph 17, the first public release of the Picture in the Territory by authority of Sales Agent, or the Outside Delivery Date in Paragraph 20.2. [If by the end of the Agency Period, Sales Agent has not recouped the Advance paid under Paragraph 10, then the Agency Period will be extended for ______ additional years.]
  • 5.2 Distribution Term: The Distribution Term means the license period for any Distribution Agreement duly concluded by Sales Agent under this Agreement. During the Agency Period, Sales Agent may negotiate Distribution Agreements having a Distribution Term that starts during the Agency Period and extends [for up to [_____ (___)] years from Delivery of the Picture under the relevant Distribution Agreement / for customary periods as decided by Sales Agent in good faith based on market conditions, but not exceeding [_____ (___)] years without Producer’s Approval / for no more than [_____ (___)] years after the end of the Agency Period without Producer’s Approval per Paragraph 9.2. Producer will honor all grants of exclusivity throughout the Distribution Term of any Distribution Agreement.

• 6. DISTRIBUTION RIGHTS AND ALLIED RIGHTS:
  • 6.1 Distribution Rights: The Distribution Rights means all exclusive rights in the Picture [in all distribution media now known or later arising / for each of the following exclusive rights: Cinematic, Ancillary, PayPerView, Video, Pay TV, Free TV, Internet and ClosedNet (including customary uses such as Simulcasting, Catch-Up TV, IPTV, Covermount, Kiosk, Pack Sales and Partwork Sales)] [Souvenir Booklets in Japan].
  • 6.2 Allied Rights: The Allied Rights means all customary rights as necessary or convenient to exploit the Distribution Rights, including: (i) creating and using advertising and marketing materials for the Picture, including trailers and clips (but only to the extent they do not generate residual or reuse fees without Producer’s Approval); (ii) using the name, voice and likeness of Persons rendering materials or services on the Picture for advertising and marketing the Picture, subject to customary contractual restrictions and obligations provided to Sales Agent by Delivery; (iii) creating and using dubbed, subtitled, voice-over, multi-track and other versions of the Picture in the Authorized Languages; (iv) editing, re-titling or reformatting the Picture for censorship or release requirements [provided that there will be no creative editing of the Picture without prior meaningful consultation with Producer]; (v) authorizing use of customary advertisements and commercial announcements in the Picture; [(vi) authorizing sponsorships of the Picture subject to contractual restrictions and obligations provided to Sales Agent by Delivery]; (vii) including the Picture in screenings to the trade in order to interest Distributors; (viii) adapting and reformatting the Picture in all sizes, gauges, formats, processes and copy protection technologies necessary or convenient for exploitation of any Distribution Rights. Sales Agent will comply with all contractual restrictions and obligations to third parties rendering services or materials to the Picture with respect to the exercise of all Allied Rights after having been provided Notice of such restrictions and obligations by Producer. In addition, Sales Agent will advise all Distributors of such contractual restrictions and obligations. No inadvertent failure by Sales Agent or any Distributor to comply with any obligation owed to Producer or a third party in exercising any Allied Rights will be a material breach of this Agreement, but Sales Agent will take reasonable steps to cure prospectively any such failure promptly after Sales Agent receives Notice of such failure.
  • 6.3 Reserved Rights: The Reserved Rights means [all rights in the Picture other than the Distribution Rights and Allied Rights / the following rights in the Picture: Merchandising (excluding Souvenir Booklets in Japan), Live Performance, Publishing, Remake, Sequel and publishing or administration rights for any music in the soundtrack album for the Picture]. Producer may only exercise or authorize exercise of any Reserved Rights in accordance with this Agreement.
  • [6.4. [First Negotiation Right] [First Negotiation / Last Refusal Right]: Producer also grants Sales Agent an exclusive [First Negotiation Right][First Negotiation / Last Refusal Right] throughout the Agency Period: (i) to become the exclusive sales agent [for all Reserved Rights / the following Reserved Rights:___________________________]; and (ii) to continue representing the Picture as the exclusive sales agent after the end of the Agency Period.]
  • 6.5 Royalty Income: To the extent that Producer controls such rights, Producer also authorizes and grants to Sales Agent, by itself or through an appropriate collecting organization, to collect on behalf of Producer all amounts collected by any collecting society, authors’ rights organization, performing rights society or governmental agency, arising from all royalties, levies and remuneration imposed by Law or collectively managed including, but not limited to: audio-visual royalties for secondary or simultaneous retransmission by means of any cable, satellite, microwave, Internet, Closed Network or other system, any Simulcasting or Catch-Up TV, tax rebates, exhibition surcharges, or levies on blank Videograms if the actions generating such income occur within the Territory during the Agency Period or any applicable Distribution Term, no matter when such sums are paid. Royalty Income means all such sums paid or payable directly from the applicable collecting organization(s) to Producer or Sales Agent which will be included in Gross Receipts.

• 7. HOLDBACKS:
  • 7.1 Sales Agent: Sales Agent agrees to negotiate to include the following Holdbacks in relevant Distribution Agreements to the full extent allowed by Law: (i) if the Territory does not include the Picture’s country of origin, not to authorize a general public release of the Picture in the Territory until the earlier of its First Release in its country of origin or [six (6) months / _____________] from its Delivery or [one (1) year / ___________] from the Effective Date; (ii) if the Distribution Rights include Video, not to authorize the export of Videos from inside the Territory to areas outside the Territory; (iii) if the Distribution Rights include PayPerView or Pay TV, not to authorize sale outside the Territory of decoders for any encrypted broadcast of the Picture originating inside the Territory; (iv) if the Distribution Rights include PayPerView, Pay TV or Free TV, not to authorize any Broadcast of the Picture from inside the Territory intended for primary reception outside the Territory, but incidental overspill will not be a breach of this provision; and (v) if the Distribution Rights include Internet or ClosedNet Rights, not to authorize making the Picture available on the Internet or a Closed Network except with customary provisions regarding technological measures to prevent access outside the Territory.
  • 7.2 Producer: Producer agrees to abide by the following Holdbacks and to include them in any distribution agreement outside the Territory to the full extent allowed by Law: (i) if the Territory includes [the Picture’s country of origin / North America] but is not worldwide, not to authorize [any / Theatrical] release of the Picture outside the Territory until the earlier of its first such release in [the Picture’s country of origin / North America] or [six (6) months / ______________] from its Delivery or [one (1) year / ___________] from the Effective Date; (ii) if the Distribution Rights include Video, not to authorize the export of Videos from outside the Territory to areas inside the Territory; (iii) if the Distribution Rights include PayPerView or Pay TV, not to authorize sale outside the Territory of decoders for any encrypted broadcast of the Picture originating inside the Territory; (iv) if the Distribution Rights include PayPerView, Pay TV or Free TV, not to authorize any Broadcast of the Picture from outside the Territory intended for primary reception inside the Territory; (v) if the Distribution Rights include Internet or ClosedNet Rights, not to authorize making the Picture available on the Internet or a Closed Network except with customary provisions regarding technological measures to control access within the Territory; and [(vi) Producer will not authorize any exploitation, until ___ months / ___ years after the Outside Delivery Date, of the following Reserved Rights:__________________________ _____].

B. Performance Provisions

• 8. SALES AGENT SERVICES:
  • 8.1 Standards: Sales Agent will undertake the customary services of a professional sales agent in the motion picture industry in representing the Picture under this Agreement. Producer understands that Sales Agent may represent other motion pictures in addition to the Picture which other motion pictures may compete with the Picture. Sales Agent will devote such time and resources to the Picture as Sales Agent believes in good faith are appropriate, but need not render services exclusively for the Picture. Sales Agent will have no less rights than any member of the general public with regard to the intellectual property rights in and to the Picture.
  • 8.2 Services Rendered – Agency Period: During the Agency Period, Sales Agent will: (i) represent, market and promote the Picture at film markets and festivals and by other customary means; (ii) solicit, negotiate and conclude Distribution Agreements; and (iii) meaningfully consult with Producer regarding Sales Agent’s activities for the Picture upon reasonable request or as otherwise required under this Agreement.
  • 8.3 Services Rendered – Distribution Term: During the Distribution Term for each Distribution Agreement, Sales Agent will: (i) organize Delivery of the Picture to Distributors, including providing appropriate notices of availability of delivery elements or materials, coordinating with laboratories, and arranging shipping; (ii) coordinate with Distributors to obtain necessary censorship approvals, tax certificates, import licenses, currency transmission certificates or like documents; (iii) provide required consultations and approvals such as for release dates or making other versions of the Picture; (iv) send notices of payments due and use commercially reasonable efforts to obtain reports and collect amounts due; (v) monitor Distributor compliance with Distribution Agreements; (vi) timely provide Producer with information that Sales Agent learns about unauthorized exploitation or piracy of the Picture; and (vii) render Statements and payments of Producer’s Share as required under this Agreement.
  • 8.4 Services Excluded: Sales Agent’s services do not include undertaking any audit or arbitration for any Distribution Agreement or pursuing any anti-piracy action. However, if after mutual consultation either Party desires to conduct an audit or arbitration, then the other Party will meaningfully cooperate with the conducting Party in providing information and assistance needed to do so. The Party conducting the audit or arbitration will be responsible for advancing all necessary costs and attorney’s fees, but may recoup them from any recovery in the audit or arbitration, with any remaining amount of such recovery being included in Gross Receipts.
  • 8.5 Distribution Deal Terms: Subject to other terms in this Agreement, Sales Agent is authorized to negotiate and conclude all Distribution Agreements within commercially reasonable parameters. However, without Producer’s Approval, Sales Agent will not conclude any Distribution Agreement for the Picture: (i) to an Affiliate of Sales Agent [except on an arm’s-length basis]; [(ii) on a “straight distribution” basis where payments are based solely on performance and there is no license fee or Minimum Guarantee]; or (iii) in conjunction with other motion pictures unless each motion picture in such Distribution Agreement has a separate Minimum Guarantee allocated on a fair and reasonable basis and no cross-collateralization is allowed among the licensed motion pictures.
  • 8.6 Distribution Deal Documentation: For documenting Distribution Agreements, Sales Agent will use commercially reasonable efforts to utilize a form of agreement subject to Producer’s Approval, with the IFTA^® Model International Licensing Agreements (including the IFTA^® International Multiple Rights Deal Memo) being pre-approved. However, Producer understands that Distributors may negotiate the terms of an approved form, may require use of their own form, or may require use of a form pre-negotiated with Sales Agent. As such, Sales Agent is authorized to conclude Distribution Agreements using any agreement form as may be commercially practicable under the circumstances. Producer authorizes Sales Agent to execute all Distribution Agreements (including deal memos) “as agent for” Producer. However, if requested by Sales Agent, Producer will timely execute any Distribution Agreement. Producer upon reasonable request may access, review and copy all Distribution Agreements concluded by Sales Agent.
  • 8.7 No Performance Guarantee: The Parties acknowledge that exploiting motion pictures is a speculative business. As such, neither Party makes any representation or warranty, express or implied, regarding the ability to conclude any Distribution Agreement, to exploit the Picture, or to earn or collect any Gross Receipts or Producer’s Share. Any estimates or projections about possible Distribution Agreements or performance of the Picture are statements of opinion only. Producer acknowledges that Producer’s Share is merely an accounting entry and Sales Agent does not guarantee that Gross Receipts will be earned or Producer’s Share will be payable in any amount. Sales Agent does not guarantee the performance of any Distributor under any Distribution Agreement.

• 9. PRODUCER INVOLVEMENT:
  • 9.1 Producer’s Cooperation: Producer will fully and timely co-operate with Sales Agent as necessary for Sales Agent to render all services, including meaningfully and timely providing all required information, Producer’s Approvals, consultations and decisions. Producer agrees that any failure by Producer to render any such cooperation as and when required will excuse Sales Agent from performing any service dependent on such cooperation.
  • 9.2 Producer’s Approval: Producer’s Approval means Notice to Sales Agent that Producer affirmatively approves or disapproves a matter for which approval is required or requested, which will not be unreasonably withheld or delayed. Approval will be deemed given if Sales Agent does not receive such Notice within twenty-four (24) hours during a film market or film festival, or five (5) days otherwise, of Producer’s receipt of the request for approval. An ambiguous or incomplete Notice will be deemed approval of any item not affirmatively disapproved. If Producer disapproves any matter, then upon reasonable request Producer will timely identify to Sales Agent any steps needed to obtain approval.
  • [Select applicable provisions]
  • [Approval of Deal Terms]
  • 9.3 Designated Deal Terms: Designated Deal Terms means the proposed [distributor, rights granted, territory, minimum guarantee, key elements, distribution term, holdbacks and delivery dates]. Producer’s Approval will apply to the Designated Deal Terms of all Distribution Agreements concluded by Sales Agent during the [first year of / entire] Agency Period [in the Major Territories / in the following Territories: _____].
  • [Ask/Take Schedule]
  • 9.4 Ask/Take Schedule: [Upon reasonable request, after execution / after viewing a rough cut of the Picture,] Sales Agent will prepare one “Ask/Take Schedule” of target asking and taking amounts for Minimum Guarantees for Distribution Rights in the [Major Territories / in the following Territories: _____]. Any Ask/Take Schedule so prepared is conditioned upon the Picture fully conforming to the description in Paragraph 3 and will become part of this Agreement. After Complete Delivery and during the [first year of / two (2) years of / entire] Agency Period, Sales Agent will not conclude any Distribution Agreement whether for all or some of the Distribution Rights in a Territory with a Minimum Guarantee less than the applicable take price on the Ask/Take Schedule without Producer’s Approval. Notwith-standing any Ask/Take Schedule, Producer understands that Sales Agent does not guarantee that any particular right or territory can be licensed or that any particular ask or take price can be obtained.
  • 9.5 Use of Ask/Take Schedule: Producer acknowledges that any Ask/Take Schedule provided by Sales Agent may contain proprietary, trade secret information of Sales Agent regarding territory pricing or customer contacts. As such, Producer will maintain any Ask/Take Schedule provided by Sales Agent under this Agreement in strict confidence and not disclose it to any third party without prior Notice of Sales Agent’s consent in each instance. In no case may Producer include any Ask/Take Schedule in any private placement memorandum, securities offering or financing proposal without specific prior Notice of Sales Agent’s consent in its sole discretion, along with all disclaimers required by Sales Agent. This provision does not apply to any information that becomes publicly available other than through a breach of any confidentiality requirement or pursuant to a governmental order or subpoena.

C. Payment Provisions

• 10. ADVANCE:
  • 10.1 Amount: [US Dollars/Euros/etc.]__________________. Sales Agent will pay Producer a non-returnable but fully recoupable Advance against Producer’s Share (as defined in Paragraph 11) in the Base Currency and amount specified above in the following installments:
    1. ____ % (____________) on execution of this Agreement;
    2. ____ % (____________) on approval of the Chain of Title;
    3. ____ % (____________) on Initial Delivery;
    4. ____ % (____________) on Complete Delivery;
    5. ____ % (____________) on First Release;
    6. ____ % (____________) on ________________________
    Producer must provide Sales Agent with an invoice for each installment showing the amount due and the date the applicable event triggering payment occurred. Sales Agent will not be required to pay any installment until [___] days after receipt of each such invoice.
  • 10.2 Base Currency: The Base Currency is the currency in which the Advance is denominated.
  • [10.3. Interest: Producer will be entitled to Interest at the rate specified in Paragraph 11.6 on any installment of the Advance not paid on the due date determined in the invoice provided in Paragraph 10.1 until it is paid in full.]
  • 10.4 Consideration: Producer agrees that Sales Agent’s payment of the Advance is in itself full and fair consideration for entering into this Agreement regardless whether or not any Producer’s Share becomes payable to Producer.

• 11. PRODUCER’S SHARE:
  • 11.1 Defined: Producer’s Share means the amount of Gross Receipts, if any, remaining after deducting and recouping on a continuous basis in the following order of priority: (i) Sales Agent’s Commission; and (ii) Sales Agent’s Recoupable Expenses, [(iii) Interest] and (iv) the Advance.
  • 11.2 Recoupment and Payment: Sales Agent will recoup its Commission, Recoupable Expenses, [Interest] and the Advance and calculate Producer’s Share on a continuous basis for as long as Gross Receipts are earned. [Except for payments made by a Collection Agent established under Paragraph 15.3,] with each Statement rendered by Sales Agent under Paragraph 16.2, Sales Agent will then pay Producer’s Share then due, if any, to Producer or its designee at the place where Producer receives Notice or such other place as Producer may designate by Notice to Sales Agent.
  • 11.3 Returnable Payments: Producer acknowledges that returnable payments, such as deposits, are not includable in Gross Receipts or used to calculate Producer’s Share until earned per Paragraph 12.2. However, Sales Agent, in its sole discretion, may elect to calculate and pre-pay Producer’s Share on any returnable payments received as if they had been earned. In such case, if the payments later become returnable, then Producer agrees upon demand to make a full refund of all pre-paid amounts received by Producer to the Distributor entitled to the refund, or, if Sales Agent in its discretion has elected to make the refund to Distributor, then Producer will reimburse Sales Agent such amount or Sales Agent may deduct the amount of the refund from other amounts due to Producer for the Picture. As a condition to making any such pre-payment, Sales Agent may require that Producer provide appropriate assurances of full and timely repayment.
  • 11.4 Producer’s Tax ID: Producer will timely provide Sales Agent with its current and accurate tax identification number and related information as needed to make any payment of Producer’s Share. Sales Agent in its discretion may withhold any payment of Producer’s Share until such information is received.
  • 11.5 Currency Conversion: To the greatest extent possible, Sales Agent will make all calculations of Producer’s Share and its components in the Base Currency. If any Gross Receipts are earned or Recoupable Expenses are incurred in another currency, Sales Agent will endeavor to convert them to the Base Currency using the exchange rate at the bank where the account for the Picture is maintained as utilized on the Statement on which the items are reported. If Sales Agent finds it impracticable to convert any monies earned or incurred in another currency to the Base Currency, then to the extent permitted by Law, Sales Agent will deposit in Producer’s name in a depository reasonably designated by Producer that portion of Producer’s Share, in the other currency, to which Producer would be entitled if such monies were convertible to the Base Currency. Such deposit will constitute payment in full to Producer of the amount so deposited.
  • [11.6. Interest: The Interest Rate will be: [ ___ %; ___ basis points over [Prime/1- month LIBOR/ 3-month LIBOR], Sales Agent will be entitled to recoup Interest on [Recoupable Expenses /the Advance.] Interest will be computed and adjusted monthly from the time the interest-bearing payment is made until it is recouped. “Prime” means the advertised base rate on major corporate loans charged by the bank where the account for the Picture is maintained. “LIBOR” means the applicable London Inter-Bank Overseas Rate.]

• 12. GROSS RECEIPTS:
  • 12.1 Defined: Gross Receipts means all gross monies and other consideration paid or payable without any deduction as “earned” with respect to any Distribution Agreement that is substantially negotiated or concluded by Sales Agent under this Agreement, including Advances, Minimum Guarantees, Overages, Royalty Income and the like.
  • 12.2 Earned: Gross Receipts will be deemed earned when unconditionally received by, forfeited to or credited to Producer or used for Producer’s benefit or account, including amounts paid to third parties at Producer’s direction, at any time during the Agency Period, any applicable Distribution Term and thereafter for so long as Gross Receipts are paid or payable. Deposits and other conditional payments will be deemed earned on the earlier of the date when they become non-refundable or are forfeited due to an uncured breach by the Distributor.
  • [12.3. Producer’s Failure of Performance: If any Distributor cancels its Distribution Agreement, refuses to make payment when due, or demands a refund of any payment solely because of a claimed default by Producer, such as a breach of warranty or failure of Delivery, then, solely for purposes of calculating Sales Agent’s Commission and Recoupable Expenses and not Producer’s Share, Gross Receipts will be deemed earned with respect to amounts paid or payable under such Distribution Agreement to the same extent as if the Distributor had unconditionally made all such payments when due. Sales Agent will calculate Sales Agent’s Commission and Recoupable Expenses that it would have recouped from such deemed Gross Receipts, and [Sales Agent may set-off and deduct such amounts from any other payment of Producer’s Share / Producer agrees to repay Sales Agent such amounts upon demand.]

• 13. SALES AGENT’S COMMISSION:
  • 13.1 Calculation: Subject to Paragraph 13.2, Sales Agent will be entitled to a Commission based on all Gross Receipts earned under this Agreement calculated as follows:
  • [Select applicable Alternative]
  • [Alternative – One Fee]
  • ___ % of Gross Receipts earned from any source
  • [Alternative – Variable Fee by Major Territory]
  • ___ % of Gross Receipts earned from any Distribution Agreement that contains any of the Major Territories; and
  • ___ % of Gross Receipts earned from any from any Distribution Agreement that does not contain any of the Major Territories.
  • [Alternative – Variable Fee by Domestic/International Territory]
  • ___ % of Gross Receipts earned from the Domestic Territory; and
  • ___ % of Gross Receipts earned from the International Territory.
  • [Alternative – Variable Fee by Distribution Right]
  • The following percentages of Gross Receipts earned for the indicated Distribution Right:

    Distribution Right	Percentage Fee
    Cinematic	___
    Ancillary	___
    PayPerView	___
    Video	___
    Pay TV	___
    Free TV	___
    Internet	___
    ClosedNet	___

  • Where multiple Distribution Rights are included in a Distribution Agreement, Sales Agent’s Commission will be based on the allocations in the Distribution Agreement; if there are none, it will be based on the allocation determined by Sales Agent in good faith.
  • [Alternative – Variable Fee by Payment Type]
  • ___ % of Gross Receipts earned from Guarantees and
  • ___ % of Gross Receipts earned from Overages
  • For these purposes: (i) “Guarantees” means fixed payments due under Distribution Agreements, including Advances, Minimum Guarantees, and License Fees; and (ii) “Overages” means contingent amounts based on performance payable after recoupment of Guarantees, if any, including royalties, contingent compensation, and net receipts.
  • [Alternative – Tiered Fee]
  • ___ % of Gross Receipts earned from first dollar to US$________________
  • ___ % of Gross Receipts earned from US$__________ to US$___________
  • ___ % of Gross Receipts earned in excess of US$______________.
  • 13.2 Use of Subagent(s): A subagent is an agent appointed by Sales Agent to represent the Picture in accordance with this Agreement and is not a Distributor. Sales Agent’s Commission will be inclusive of the commission of any subagent(s) used by Sales Agent except for customary subagent(s) used to conclude Distribution Agreements for television rights [in the Major Territories / in ______________] whose commission will be deducted [“off the top”] from Gross Receipts derived from such Distribution Agreements [and capped at ___% of such Gross Receipts].

• 14. RECOUPABLE EXPENSES:
  • 14.1 Defined: Recoupable Expenses means all direct, documented, reasonable and customary costs and expenses paid or incurred by Sales Agent in representing the Picture under this Agreement.
  • 14.2 Marketing Expenses: Marketing Expenses means all Recoupable Expenses for: (i) advertising, marketing and promoting the Picture; (ii) creating and manufacturing trailers, one-sheets, promos, advertising, marketing and publicity materials; (iii) attending film markets and festivals where the Picture is actually introduced or made available to potential Distributors, including participation fees, travel expenses, office charges and customary entertainment costs with potential Distributors all as allocated to the Picture; [(iv) retaining public relations or marketing firms for representing the Picture subject to Producer’s Approval]; (v) undertaking promotional or trade screenings for the Picture; (vi) arranging promotional tours for talent associated with the Picture [subject to Producer’s Approval]; and (vii) other reasonable and customary marketing expenses.
  • 14.3 Servicing Expenses: Servicing Expenses means all Recoupable Expenses for: [(i) withholding, sales, use, VAT or like taxes charged on any Gross Receipts or Delivery Materials, but not including any franchise or income tax of Sales Agent; (ii) verifying, quality checking, handling and storing all Delivery Materials; (iii) obtaining necessary licenses and clearances and undertaking searches and obtaining corrective documents for any items in the Chain of Title not duly delivered by Producer, including reasonable [outside] attorneys’ fees and required payments to third parties, provided Sales Agent will consult with Producer in advance before incurring such fees or payments; (iv) accepting Delivery and creating and manufacturing Delivery Materials not duly delivered as provided in Paragraph 21; (v) servicing Distribution Agreements including charges for creating, manufacturing, packaging, duplicating, shipping, handling and storing servicing materials required under Distribution Agreements and charges for servicing agents; (vi) international telephone, fax, postage, messenger and copying fees; (vii) notarial and consularization certificates, import licenses, governmental permits and the like; (viii) undertaking billings and collections under any Distribution Agreement, including currency conversion fees, escrow fees, and bank charges including for separate bank accounts; (ix) if the Parties mutually agree, the actual [outside] attorneys’ fees for negotiating and concluding any Interparty Agreement, Notices of Assignment and Acknowledgement with Distributors, and related documents required for obtaining financing for the Picture, if any; (x) actual costs of outside professionals, including servicing agents, attorneys, auditors and accountants, to assist in negotiating, servicing or enforcing any Distribution Agreement, provided Sales Agent will consult with Producer in advance before retaining any such outside professionals; and (xi) other reasonable and customary servicing expenses].
  • 14.4 Distributor Payment: Sales Agent will use commercially reasonable efforts to require payment of all applicable Servicing Expenses by the Distributor under the affected Distribution Agreement but does not guarantee the ability to do so. Any Servicing Expenses paid by the Distributor will be deducted from the Servicing Expenses recoupable by Sales Agent.
  • 14.5 Allocation: Where Sales Agent incurs any Recoupable Expenses for the Picture and other motion pictures, Sales Agent will allocate such expenses among all affected motion pictures on a fair and reasonable basis.
  • [Select applicable Alternative]
  • [Alternative – Recoupment Only]
  • 14.6 Recoupment: Sales Agent will advance all Recoupable Expenses, which Sales Agent may recoup from Gross Receipts in accordance with Paragraph 11.2. Producer will have no liability to any third parties for any Recoupable Expenses not so recouped from Gross Receipts.
  • [Alternative – Marketing Budget]
  • 14.7 Marketing Budget: Sales Agent will timely prepare for Producer’s Approval a proposed budget of anticipated Marketing Expenses. [Producer will then pay Sales Agent the approved budgeted amount and Sales Agent will then incur and pay Marketing Expenses in substantial conformity with the approved budget. Sales Agent will then incur and pay Marketing Expenses in substantial conformity with the approved budget, recouping such amounts as Marketing Expenses in accordance with Paragraph 11.2.] Sales Agent need not incur Marketing Expenses in excess of the approved budget, but may do so in its discretion. However, Sales Agent will be solely responsible for paying such excess and may not recoup the excess from Gross Receipts without Producer’s Approval.
  • [Alternative – Overall Expense Cap]
  • 14.8 Overall Cap: Without Producer’s Approval, Sales Agent will not recoup Recoupable Expenses in excess of [US$ ____________] [excluding ___________ and amounts under Paragraph 21]. Sales Agent may incur Recoupable Expenses in excess of this cap but Sales Agent will be solely responsible for paying such excess and may not recoup the excess from Gross Receipts without Producer’s Approval.
  • [Alternative – Expense Category Cap]
  • 14.9 Marketing Expense Caps: Without Producer’s Approval, Sales Agent will not recoup Marketing Expenses in excess of [a Marketing Budget to be established with Producer’s Approval / US$ ____________excluding _____________ ]. Sales Agent may incur Marketing Expenses in excess of this cap, but Sales Agent will be solely responsible for paying such excess and may not recoup the excess from Gross Receipts without Producer’s Approval.
  • 14.10 Servicing Expense Cap: Without Producer’s Approval, Sales Agent will not recoup Servicing Expenses in excess of [US$ ____________] [excluding ______________ and amounts under Paragraph 21]. Sales Agent may incur Servicing Expenses in excess of the above cap, but Sales Agent will be solely responsible for paying such excess and may not recoup the excess from Gross Receipts Producer’s Approval.
  • [Alternative – Market Attendance Caps]
  • 14.11 Market Attendance Caps: Without Producer’s Approval, Sales Agent will not recoup those Marketing Expenses per Paragraph 14.2 (iii) for attending the following film markets or festivals in excess of the following amounts: [_______________________________]. Sales Agent may incur such Marketing Expenses in excess of the above caps, but Sales Agent will be solely responsible for paying such excess and may not recoup the excess from Gross Receipts without Producer’s Approval.

• 15. COLLECTIONS AND PAYMENTS:
  • [Select applicable Alternative]
  • [Alternative – General Account]
  • 15.1 General Account: Sales Agent will deposit all collections of Gross Receipts in its general company accounts and make all disbursements from Gross Receipts for the Picture from such accounts. Producer will have no claim to any Gross Receipts, Producer’s only right being a claim to payment of Producer’s Share if and when due. Sales Agent will pay Producer or its designee the amount of Producer’s Share as shown due on each Statement rendered by Sales Agent under Paragraph 16.2.
  • [Alternative – Separate Account]
  • 15.2 Separate Account: Sales Agent will establish a Separate Account at [Bank] in the name of the Picture and direct all payments of Gross Receipts to be made into such account. Sales Agent will calculate and pay any Producer’s Share, if any, from such account [with each Statement rendered by Sales Agent under Paragraph 16.2 / within fifteen (15) days after Gross Receipts are earned and received in the Separate Account, in which case Sales Agent will reconcile such payments to amounts shown due on later Statements rendered by Sales Agent under Paragraph 16.2, paying Producer any underpayment or re-couping any overpayment from later payments.].
  • [Alternative – Collection Account]
  • 15.3 Collection Account: Sales Agent and Producer will negotiate in good faith and timely conclude an agreement with a [mutually approved] third party Collection Agent for making all collections and disbursements of Gross Receipts. [The Parties pre-approve [___] as Collection Agent.] Sales Agent will direct all payments of Gross Receipts into the Collection Account established by the Collection Agent for the Picture. From all Gross Receipts deposited in the Collection Account which have become earned as indicated by Notice from Sales Agent, Collection Agent will make disbursements in the following order: (i) first the Collection Agent will deduct its administration fees and charges; (ii) then the Collection Agent will pay Sales Agent its Commission, Recoupable Expenses, [Interest] and unrecouped Advance in accordance with [an invoice / ___________] presented by Sales Agent to the Collection Agent / or as otherwise set forth in the collection agreement]; and (iii) then the Collection Agent will remit the balance remaining, if any, to Producer or its designee. In rendering Statements, Sales Agent will reconcile amounts paid from the Collection Agent to amounts shown due on the Statement. In case of an overpayment to any Party, the Party will promptly return the overpayment to the Collection Account.

• 16. STATEMENTS AND AUDITS:
  • 16.1 Standards: Sales Agent will maintain full and accurate books and records for the Picture [at Sales Agent’s principal place of business] using generally accepted accounting principles on a consistent, uniform and non-discriminatory basis consistent with this Agreement.
  • 16.2 Statements: [Unless otherwise provided by any Collection Agent established under Paragraph 15.3,] Sales Agent will render to Producer periodic Statements showing all Gross Receipts earned and Recoupable Expenses paid or incurred in calculating Producer’s Share on a cumulative and current basis. Such statements will be rendered no less frequently than sixty (60) days after each calendar quarter during the first [three (3) years] of the Agency Period and thereafter [semi-annually / annually], throughout the Agency Period and any applicable Distribution Term.
  • [16.3. Incontestability: All items shown on any Statement will be deemed incontestable twenty-four (24) months after the Statement is rendered unless Producer during such period gives Sales Agent Notice specifying each contested item in reasonable detail. Sales Agent may correct any item shown on any Statement, in which case the incontestability period will re-commence solely with respect to the corrected item. Sales Agent need not maintain any books or records for any item for more than two (2) years after the item is deemed incontestable.]
  • 16.4 Audits: Producer may audit the books and records of Sales Agent regarding the Picture for any item not deemed incontestable using [qualified / licensed / professional] accountants upon at least one (1) month’s prior Notice once annually during the Agency Period and until one (1) year after the applicable Distribution Term. If the audit falls during a film market or festival, Sales Agent may delay the audit until two (2) weeks after its conclusion. The audit will be at Producer’s expense unless the audit demonstrates an underpayment, accepted by Sales Agent or later proven to be correct, of more than [US$_______ / ten percent (10%) of the amount shown due Producer on any Statement] in which case Sales Agent will pay on demand the underpayment and the reasonable audit costs of uncovering the underpayment [up to the amount of the underpayment / not to exceed ___________].

D. Delivery Provisions

• 17. DELIVERY: Delivery of the Picture means actual, physical delivery to and acceptance by Sales Agent, at Producer’s obligation and expense, of all Delivery Materials in the attached and incorporated IFTA^® Delivery Schedule in accordance with this Agreement. Initial Delivery means Delivery of all Delivery Materials marked as Initial Materials, and Complete Delivery means Delivery of all Delivery Materials.
• 18. INSPECTION: All Delivery Materials must conform to the Picture as specified in Paragraph 3. Sales Agent will have a period of [twenty-one (21)] days after receipt of all Delivery Materials to inspect them for technical quality and conformity to specifications (“Inspection Period”). If Sales Agent determines any Delivery Materials are not acceptable, Sales Agent will give Producer a Notice to such effect within the Inspection Period specifying the defect(s) in reasonable detail, with any defect not specified being waived. Producer will then timely deliver substitute Delivery Materials to Sales Agent who will have another Inspection Period. This process will continue with successive periods until either Sales Agent has accepted, or waived acceptance, of all Delivery Materials, or the Outside Delivery Date occurs, and nothing in this process will waive Producer’s obligation to make Complete Delivery by the Outside Delivery Date. Sales Agent may in its discretion waive Delivery of any particular Delivery Materials and in so doing agrees that Delivery has deemed to occur without them, but this will not waive Sales Agent’s right to require Producer upon reasonable Notice to make later Delivery of any waived Delivery Materials.
• 19. CHAIN OF TITLE: Delivery includes providing Sales Agent with all documents in the Chain of Title, as identified in the IFTA^® Delivery Schedule, demonstrating Producer’s ownership or control of all Distribution Rights and Allied Rights in the Picture throughout the Territory for the Agency Period and any anticipated Distribution Term. Sales Agent will have a period of [twenty-one (21)] days after receipt of all documents in the Chain of Title to inspect them for legal sufficiency (“Review Period”). If Sales Agent reasonably disapproves any document, Sales Agent will give Producer Notice within the Review Period specifying the defect(s) in reasonable detail, with any defect not specified being waived. In accordance with Paragraph 33.8, Producer will then timely obtain at Producer’s expense necessary corrective documents. If Producer fails to do so, then Sales Agent may do so, charging the cost of so doing as a Servicing Expense. Sales Agent’s failure to request or Producer’s failure to provide any documents in the Chain of Title will not limit or excuse any of Producer’s representations, warranties or indemnities under this Agreement. Sales Agent will have the right in its discretion to waive any defect in any document contained in the Chain of Title for purposes of making any payment to Producer, but such waiver will not waive Sales Agent’s right to require delivery of satisfactory Chain of Title documents at a later time.
• 20. DELIVERY DATES:
  • 20.1 Initial Delivery Date: [____________________]. Producer must initiate the Delivery process of the Picture within a reasonable time after execution of this Agreement. Producer will undertake all reasonable efforts to complete Initial Delivery of the Picture by no later than the above Initial Delivery Date.
  • 20.2 Outside Delivery Date: [____________________]. In any case, Producer must make Complete Delivery of the Picture by no later than the date specified above or, if no date is specified, [six (6) months] after the Effective Date (“Outside Delivery Date”). Since the Delivery process includes time periods for inspection and correction, Producer must initiate the process in sufficient time to assure its completion by the Outside Delivery Date.

• 21. FAILURE OF DELIVERY: Producer’s failure to make Complete Delivery by the Outside Delivery Date will be a material breach of this Agreement. In such case, Sales Agent, in addition to any other right or remedy, may deem all outstanding Commissions and Recoupable Expenses under any concluded Distribution Agreements to be earned and payable as of such Outside Delivery Date. Sales Agent will also have the right, but not the obligation, to create and manufacture any required Delivery Materials and to use them to service applicable Distribution Agreements as Sales Agent deems appropriate. Sales Agent may charge and recoup [one hundred and ten percent (110%)] of the creation, manufacturing, shipping and handling costs of so doing as a servicing cost [(i.e., actual cost plus an overhead charge)], which amount will be outside of any cap on Recoupable Expenses. This charge will be in addition to and not a waiver of any right or remedy Sales Agent may have for a Failure of Delivery.
• 22. OWNERSHIP OF MATERIALS:
  • 22.1 Delivery Materials: Producer will retain legal ownership of and title to all Delivery Materials and no granting of access to or possession of any Delivery Materials by Producer will constitute a “first sale.” Instead, Sales Agent will only hold all Delivery Materials on loan for servicing Distribution Agreements. Upon reasonable request, Sales Agent will provide Producer with Notice of the location of all Delivery Materials. Sales Agent will exercise due care in safe-guarding all Delivery Materials during [the Agency Period and any applicable Distribution Term].
  • 22.2 Created Materials: Sales Agent will own title to all materials created or manufactured under its authority from the Delivery Materials, including those under Paragraph 21, subject to an exclusive license to use all such created materials for purposes of this Agreement, while Producer will retain the copyright in all such materials. If such an exclusive license is not allowed under Law in the Territory, then Producer grants to Sales Agent a non-exclusive free license to use all such materials in the Territory during the Agency Period and all Distribution Terms. Upon reasonable request, Sales Agent will provide Producer or its designees with access to any alternate language tracks, subtitled tracks and dubbed versions, masters, advertising and promotional materials including trailers, artwork and other materials created or authorized by Sales Agent from the Delivery Materials. Producer will pay Sales Agent promptly on receipt of invoice for any [third party] costs of providing such materials.
  • 22.3 Return of Materials: Upon the later of the expiry of the Agency Period or of the final Distribution Term, Sales Agent will promptly at Producer’s direction: (i) return all Delivery Materials to Producer at Producer’s expense or provide Producer with a customary certificate of their destruction; and (ii) either sell all then available materials created by Sales Agent to Producer for their unrecouped actual costs of manufacturing, shipping and storage, or provide Producer with a customary certificate of their destruction.

• 23. ACCESS TO OTHER MATERIALS: If Producer has or will conclude a distribution agreement for the Picture with any distributor in the [U.S. / any other country outside the Territory], Producer will use good faith efforts to obtain for Sales Agent free access to all delivery, publicity and advertising materials for all versions of the Picture created by or for any such distributor, but any failure to do so will not be a breach of this Agreement. Producer will give Sales Agent timely Notice whether Producer has obtained such access, free or otherwise, and the particulars for its exercise, provided if Producer has free access to any such materials Sales Agent will also have free access to those materials. Any fee for such access, or clearance or use costs for such materials advanced by Sales Agent, will be treated as a Recoupable Expense [outside any applicable cap].

E. Third Party Provisions

• 24. THIRD PARTY PAYMENTS: Producer will be solely responsible for making timely payments to all parties rendering services or materials to the Picture, including all profit participations, guild and union residuals, royalties and reuse fees, and music clearance fees in accordance with Paragraph 25 and Sales Agent will not be responsible for such payments. Producer agrees to execute on demand any side-letter required by any applicable guild or union necessary to allow any collecting organization to collect or pay Royalty Income for the Picture.
• 25. MUSIC:
  • 25.1 Cue Sheets: As part of Delivery, Producer will supply Sales Agent with one (1) electronic file of a customary music cue sheet detailing the particulars of all music contained in the final version of the Picture and trailer, including the title of each composition, the composer(s), lyricist(s) and publisher(s) (including percentage of ownership if more than one publisher), copyright owner(s), performer(s), arranger(s), usage(s) (whether background instrument, background vocal, etc.), the number of such uses, the place of each composition showing the location and duration of each cue by the film footage or HD time code and running time of each cue and the performing rights society involved for each composer and publisher. Sales Agent will undertake to provide such cue sheets to Distributors for filing with the appropriate governmental agency or music rights society in the Territory.
  • 25.2 Synchronization and Other Licenses: Producer will obtain by [Initial] Delivery, and maintain in effect for the Agency Period and any applicable Distribution Term throughout the Territory, all rights needed to synchronize the underlying musical composition(s), to use the sound recording and to use any other musical composition to any music commissioned for the Picture for all music embodied in the Picture on all its Copies or promotional materials without cancellation or charge to Sales Agent or any Distributor for all applicable Distribution Terms. Producer will be solely responsible for paying all sums needed to obtain and maintain such rights.
  • 25.3 Mechanical: Producer will obtain by [Initial] Delivery, and maintain in effect for the Agency Period and any applicable Distribution Term throughout the Territory, all rights needed to make mechanical reproductions of all music embodied sufficient to exploit the Picture consistent with this Agreement on all its Copies or promotional materials, without cancellation or charge to Sales Agent or any Distributor for all applicable Distribution Terms. Producer will be solely responsible for paying all sums needed to obtain and maintain such mechanical rights, provided if a mechanical or authors’ rights society in a country in the Territory refuses to honor in that country a valid authorization obtained by Producer, then Producer will not be responsible for such sums charged by such mechanical or authors’ rights society. [Sales Agent is not responsible for obtaining mechanical rights to the music in the Picture; however any costs for mechanical rights that may be advanced by Sales Agent in its sole discretion will be recouped by Sales Agent as a Servicing Expense outside of any cap.]
  • 25.4 Performance: Producer Will Obtain By [Initial] Delivery, And Maintain In Effect For All Relevant Times Throughout The Territory, All Clearances Needed To Establish That The Non-Dramatic (“Small”) Performing Rights In Each Musical Composition Embodied In The Picture Are Either: (I) In The Public Domain In The Territory; Or (Ii) Owned Or Controlled By Producer Sufficient To Allow Sales Agent And Any Distributor To Exploit The Licensed Rights Without Additional Payment For Such Rights; Or (Iii) Available By Blanket License From A Performing Rights Society In The Territory Affiliated With The International Confederation Of Authors And Composers Societies (Cisac).

• 26. PRODUCER REPRESENTATIONS AND WARRANTIES: Producer represents and warrants to Sales Agent that all of the following are true and correct and will remain so throughout the Agency Period and any applicable Distribution Term: (i) Producer is duly organized and in good standing in [_________] with [Entity No.___] and has full authority to enter into and perform this Agreement; (ii) the Picture is fully original other than incidental stock footage or public domain material; (iii) Producer exclusively owns or controls all Distribution Rights and Allied Rights in the Picture throughout the Territory for the Agency Period and any relevant Distribution Term; (iv) Producer has not and will not appoint any other sales agent to represent any Distribution Rights in the Picture anywhere in the Territory throughout the Agency Period, and Producer will honor all grants of exclusivity in all Distribution Agreements for their entire Distribution Term; (v) Sales Agent will not be responsible for any claim of residuals under 28 U.S.C. § 4001 or any other law or provision of any collective bargaining agreement; (vi) except as provided in Paragraph 25 for embodied music, by Delivery, Producer will have satisfied all obligations to and obtained all necessary authorizations from writers, producers, directors, composers, performers and all other Persons rendering materials or services for the Picture, to use their contribution to the Picture without cancellation, impairment or further payment; (vii) for embodied music, by Delivery, Producer will have obtained all necessary authorizations from authors, composers, lyricists and performers to use all synchronization, mechanical and performance rights as provided in Paragraph 25; (viii) nothing in the Picture or any Delivery Materials, including its title or embodied music, infringes any intellectual property right (copyright, author’s right, neighboring right, patent, trademark, etc.) or personal right (defamation, libel, slander, performer’s right, right of publicity, moral right, etc.) of any Person nor will any exploitation of the Picture violate any Law; (ix) there are no pending or threatened claims, arbitration or litigation, nor any liens, security rights, charges or encumbrances [other than customary guild security interests], affecting the Picture or any Delivery Materials that might impair Sales Agent’s free and unencumbered representation of any Distribution Rights or Allied Rights anywhere in the Territory for the Agency Period and any applicable Distribution Term; (x) the Picture (including any available coverage material) will be capable of obtaining an MPAA/CARA rating no more restrictive than “R” or its equivalent in major countries in the Territory; (xi) all documents in the Chain of Title are true and complete copies of the original, valid and enforceable according to their terms; and (xii) Producer has undertaken reasonable efforts to ensure that all suppliers of essential special effects and other digital information embodied in any Delivery Materials have not included any electronic self-help instructions that will cause such digital information to cease operation of its own accord in a manner that materially impairs any use of such Delivery Materials, but this does not apply to electronic Rights Management Information that prevents unauthorized use of the Delivery Materials.
• 27. SALES AGENT REPRESENTATIONS AND WARRANTIES: Sales Agent represents and warrants to Producer that all of the following are true and correct and will remain so throughout the Agency Period: (i) Sales Agent has full authority to enter into and perform this Agreement; (ii) no advertising or marketing materials created by Sales Agent will infringe any intellectual property right (copyright, author’s right, neighboring right, patent, trademark, etc.) or personal right (defamation, libel, slander, performer’s right, right of publicity, moral right, etc.) of any Person, subject to any failure of Producer’s representations and warranties applicable to such materials; and (iii) Sales Agent will not conclude any Distribution Agreement subject to Producer’s Approval without first obtaining such Approval.
• 28. INDEMNITIES: Each Party will indemnify, defend and hold harmless the other Party from any third party claim or resulting loss, liability or damage, including reasonable [outside] attorneys’ and professional fees, arising from any failure of any of the Party’s representations or warranties [or undertakings] contained in this Agreement. Producer will include Sales Agent as an additional insured under Producer’s policy of errors and omissions insurance for the Picture and provide Sales Agent with a customary certificate of such coverage as part of Delivery of the Picture.

F. Default Provisions

• 29. DEFAULT AND REMEDIES:
  • 29.1 Notice and Cure: Each Party will give the other Party Notice of any claimed default under this Agreement. If the defaulting Party fails to cure the default within fourteen (14) days for a monetary default or twenty-one (21) days for a non-monetary default after receipt of Notice, the aggrieved Party may pursue any available right or remedy for such uncured default.
  • 29.2 Recoverable Damages: Each Party may only seek to recover incidental or direct damages occasioned by any default. Each Party waives any right to seek special, consequential or punitive damages, including “lost profits” from any default. This waiver is an independent covenant that survives the failure of essential purpose of any other remedy, even if limited.
  • 29.3 Producer Cancellation: Producer will have the right to give Notice to Sales Agent of its intent to cancel this Agreement for uncured default by Sales Agent in failing to pay when due [the first / any] installment of the Advance. However, except in such situation, Producer will have no right to terminate, cancel or rescind this Agreement or any authority granted to Sales Agent, nor to seek any injunction or equitable remedy or prevent Sales Agent’s representation of the Picture, Producer’s sole remedy in all such cases being limited solely to an action at law for an accounting or Recoverable Damages. A “cancellation” means a termination of this Agreement for cause, i.e., for an uncured material default.
  • 29.4 Sales Agent Cancellation: Sales Agent will have the right to give Notice to Producer of its intent to cancel this Agreement at any time after any uncured material default by Producer.
  • 29.5 Effect of Cancellation: In case of cancellation, each Party will retain all its rights and remedies due for any performance rendered up to the time of cancellation, including all claims for damages, Commissions, and Recoupable Expenses. [In addition, with respect to any existing Distribution Agreements, either: (i) Sales Agent will continue to service all Distribution Agreements substantially negotiated or concluded by Sales Agent up to the time of cancellation, including collecting all Gross Receipts and making recoupments under Paragraph 11.2 attributable to such Distribution Agreements, but Sales Agent may not negotiate any new Distribution Agreements; or (ii) alternatively, if the Parties mutually agree, Producer will assume all Distribution Agreements substantially negotiated or concluded by Sales Agent up to the time of cancellation and make all payments of Sales Agent’s Commission and Recoupable Expenses from Gross Receipts as earned under such Distribution Agreements.] Sales Agent may include in any Distribution Agreement a provision that Producer will have no right to terminate, cancel or rescind such Distribution Agreement, or to seek any equitable relief to enjoin or restrain the Distributor’s exploitation of the Picture, Producer’s sole remedy for any breach of the Distribution Agreement being limited to monetary damages.
  • 29.6 Equitable Relief: Producer agrees that the Distribution Rights are of a unique artistic or intellectual value, the loss of representation of which cannot be fully compensated by monetary damages, so that Sales Agent will have the right to seek equitable relief, including an injunction, for a default by Producer. Nothing in this Agreement prevents Producer from seeking equitable relief for any attempted exploitation of any Distribution Rights or Allied Rights in the Picture outside the scope of this Agreement or any applicable Distribution Agreement.
  • 29.7 Set-Off: Sales Agent may set-off and recoup from Producer’s Share whenever due any overpayment of Producer’s Share [or any other amount due Producer from Sales Agent under this Agreement].

• 30. ARBITRATION: Any dispute arising under this Agreement, including with respect to any right or obligation that survives termination or cancellation of this Agreement, will be administered and resolved by final and binding arbitration under the IFTA^® Rules for International Arbitration in effect as of the Effective Date of this Agreement (“IFTA^® Rules”). The IFTA^® Rules are available online at the following address: www.ifta-online.org. Each Party waives any right to adjudicate any dispute in any other court or forum except that a Party may seek interim relief as allowed by the IFTA^® Rules. The arbitration will be held in the Forum and under the Governing Law designated in this Agreement, or, if none is designated, as determined by the IFTA^® Rules. The arbitration will be decided in accordance with the Governing Law. The Parties will abide by any decision in the arbitration and any court having jurisdiction may enforce it. The Parties submit to the jurisdiction of the courts in the Forum for interim relief, to compel arbitration or to confirm an arbitration award. The Parties agree to accept service of process in accordance with the IFTA^® Rules and agree that such service satisfies all requirements to establish personal jurisdiction over the Parties. The Parties waive application of the Hague Convention for Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters with respect to the procedures for service of process.

G. General Provisions

• 31. CREDIT: Sales Agent will be entitled to add [at its unrecoupable expense] its logo before the main credits of the Picture and in any related advertising, marketing and publicity released in the Territory [and an additional credit in the form of “__________________” / in the main credits / end credits / as may be mutually agreed by the Parties].
• 32. NOTICES:
  • 32.1 Notice: A Notice means any communication required or allowed under this Agreement. All Notices must be in a record authenticated by the sender. Notice sent by personal delivery or mail will be effective when received. Notice sent by fax or e-mail will be effective when the sender receives an acknowledgement showing receipt by the recipient. A Notice of Termination sent by fax or e-mail must be accompanied by Notice sent by non-electronic means to be effective.
  • 32.2 Place to Send Notice: All Notices must be sent to a Party at its address on the Cover Page, except a Party may change its place for notice by Notice duly given. If a Party is no longer located at its place for Notice, the sender may give Notice by sending Notice to the receiving Party’s last known address and providing a copy to a public official, if any, in the jurisdiction where such address is located designated to receive notice for absent parties, such as a Secretary of State, Company Commissioner or other appropriate authority.
  • 32.3 Notice Time Periods: All time periods in this Agreement based on Notice run from the date the recipient receives, or is deemed to have received, such Notice.

• 32. ASSIGNMENT AND DELEGATION:
  • 32.1 Producer: Except as provided in this Paragraph, Producer may not assign this Agreement, or rights under it, or delegate any duties, in whole or in part, voluntarily or involuntarily, whether outright or for security, without prior Notice of Sales Agent’s consent, and any attempt to do so without such prior Notice will be void and of no effect. For these purposes, an assignment includes an outright transfer, the granting of any lien or security interest, and a sale of substantially all of the assets of Producer or a conveyance of a majority of the membership interests or voting equity securities of Producer. As a condition to giving any consent, Sales Agent may require the assignee or delegate to assume in an authenticated record all obligations of Producer under this Agreement. However, once Producer has made Complete Delivery, Producer may assign, outright or for security, without the need for Sales Agent’s prior consent, any portion of Producer’s Share by giving Sales Agent Notice of the assignee and place for payment. Any assignment or delegation allowed under this Paragraph will be binding on and inure to the benefit of the assignee or delegate, but will not release Producer from its obligations under this Agreement.
  • 32.2 Sales Agent: Except as provided in this Paragraph, Sales Agent may not assign this Agreement, or rights under it, or delegate any duties, in whole or in part, voluntarily or involuntarily, whether outright or for security, without prior Notice of Producer’s consent, and any attempt to do so without such prior Notice will be void and of no effect. For these purposes an assignment includes an outright transfer, the granting of any lien or security interest, and a sale of substantially all of the assets of Sales Agent or a conveyance of a majority of the membership interests or voting equity securities of Sales Agent. As a condition to giving any consent, Producer may require the assignee or delegate to assume in an authenticated record all obligations of Sales Agent under this Agreement. However, Sales Agent may without prior Notice of Producer’s consent: (i) make an assignment or delegation to any affiliated, parent or subsidiary company of Sales Agent; (ii) [provided that Sales Agent is not then in default,] make an assignment to an entity which acquires substantially all of Sales Agent’s assets and which assumes in an authenticated record all of Sales Agent’s obligations under this Agreement; (iii) assign or grant a security right in any portion of Sales Agent’s Commission or Recoupable Expenses; or (iv) authorize or appoint subagents for any Territories or Distribution Rights in accordance with Paragraph 13.2, provided the subagent agrees to be bound by this Agreement. Any assignment or delegation allowed under this Paragraph will be binding on and inure to the benefit of the assignee or delegate but will not release Sales Agent from its obligations under this Agreement.

• 33. MISCELLANEOUS:
  • 33.1 Entire Agreement: This Agreement represents the entire understanding of the Parties regarding its subject matter, superseding all prior written or oral negotiations, understandings, representations or agreements between them, if any. Each Party expressly waives any right to rely on such prior negotiations, understandings, representations or agreements, if any.
  • 33.2 Modification: No modification of this Agreement is effective unless evidenced by a record authenticated by both Parties.
  • 33.3 No Waiver: No waiver of any right or remedy under this Agreement will be effective unless contained in a record authenticated by the Party making the waiver. The exercise of any right or remedy will not waive any other right or remedy. No waiver of any default will be a waiver of any right or remedy for any other default.
  • 33.4 Remedies Cumulative: All remedies are cumulative; resorting to one remedy will not preclude resorting to any to any other remedy at any time.
  • 33.5 Attorneys’ Fees: The Prevailing Party in any dispute or arbitration under this Agreement [will / will not] be entitled to recover reasonable [outside] attorney’s fees incurred in prosecuting or defending the case. This provision supersedes any contrary provision in the IFTA^® Rules.
  • 33.6 Terminology: In this Agreement “and” means all possibilities, “or” means any or all possibilities in any combination, and “either...or” means only one possibility. “Including” means “including without limitation”; “must” or “will” means a Party is obligated to act or refrain from acting; “may” means a Party has the right, but is not obligated, to act or refrain from acting.
  • 33.7 Security Interest: To secure Sales Agent’s rights to recoup its Commission, Recoupable Expenses, [Interest] and the Advance, Producer grants Sales Agent a continuing Security Interest in all Distribution Rights in the Picture throughout the Territory and for any applicable Distribution Term in accordance with the attached Security Interest Documents consisting of [a security agreement / mortgage of copyright and security interest with description of collateral].
  • 33.8 Additional Documents: Upon reasonable request each Party will execute and deliver any additional documents as are necessary to evidence, secure or perfect the other Party’s interest under this Agreement or to carry out its terms, and each Party authorizes the filing of such documents with appropriate public authorities.
  • 33.9 E-Commerce: No record relating to this Agreement, including this Agreement itself or any Notice, may be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation or transmission.
  • 33.10 Governing Law: This Agreement will be governed by and interpreted under the laws of [California]. The predominant purpose of this Agreement is providing services with respect to intellectual property and not a sale of goods.
  • 33.11 Forum: The exclusive Forum for conducting any arbitration or otherwise resolving any dispute under this Agreement will be [the County of Los Angeles, California] and for any other disputes under this Agreement the forum will be [the courts located within the County of Los Angeles, California]. The effectiveness of this exclusive forum selection clause will be determined by the Governing Law of this Agreement.
  • 33.12 Severability: If any provision of this Agreement is determined to be invalid or illegal under any applicable Law, the remaining provisions of this Agreement will nonetheless remain in full force and effect, unless the invalid or illegal provision was a material part of the consideration for a Party to enter into this Agreement. In such case, upon reasonable request by either Party, both Parties will negotiate in good faith in an attempt to modify this Agreement to comply with the applicable Law and to effectuate the original intent of the Parties as closely as possible, failing which either Party may seek to rescind this Agreement for a material failure of consideration to the extent allowed by applicable Law.
  • 33.13 Counterparts: This Agreement may be executed in counterparts, each of which will be an original but all of which together will form one instrument.

If the above provisions correspond to your understanding, please sign this letter below where indicated.

[Sales Agent]

By: ______________________________

Its:

Accepted and agreed:

[Producer Company Name]

By: ______________________________

Its:

Dated: ____________

Delivery Schedule

This Delivery Schedule consists of two parts, a Delivery Check-List which identifies the delivery requirements for elements that are defined and specified on the Delivery Elements Description negotiated by the Parties.

Delivery Check-List

Delivery Elements Description: to be provided by Parties.

IFTA® Laboratory Access Letter for Sales Agent

Pursuant to an existing Sales Agency Agreement, Producer has authorized Sales Agent to represent certain Distribution Rights in the Picture for the Agency Period identified above. In order to allow Sales Agent to represent the rights, Producer is instructing Laboratory to provide Sales Agent access to the Materials identified above, and Laboratory agrees to accord Sales Agent such access, on the following terms:

1. Acknowledgment: Laboratory acknowledges that Producer has on deposit in Producer’s name with Laboratory’s facility at the address indicated above, those Materials for the Picture specified above.
2. Ordering Materials: Laboratory is authorized and instructed to honor, and subject to receiving satisfactory credit arrangements agrees to honor, at prices not exceeding its then prevailing rates for like work, all orders of Sales Agent and any authorized Distributors for internegatives, interpositives, positive prints, video masters, digital elements and other laboratory services and materials relating to the Picture during the Agency Period and applicable Distribution Terms. Laboratory agrees to deliver to Sales Agent on request such Materials as Sales Agent may order.
3. Laboratory Charges: Laboratory’s charges for services or Materials will be solely for the account of the ordering Party. Laboratory will not hold Producer liable for charges incurred by Sales Agent or any authorized Distributor, and will not hold Sales Agent or any authorized Distributors liable for charges incurred by Producer. Laboratory will not refuse to honor the order of any Party due to unpaid charges of another party and will not assert a lien or claim against any Materials ordered by one Party due to unpaid charges of another Party.
4. Moving Materials: During the Agency Period and applicable Distribution Terms, Laboratory will not allow any of the Materials to be removed from its facility without the prior written consent of both Producer and Sales Agent, except Laboratory may move on a temporary basis working materials, excluding any negatives, to any special effects facilities used in the ordinary course of Laboratory’s business. During the Agency Period and applicable Distribution Terms any Party may remove positive prints, duplicate negative materials, interpositives, masters, digital elements or other material made by Laboratory from the Materials for the account of such Party.
5. Instructions Irrevocable: The instructions contained in this Access Letter are irrevocable and may not be modified, except by a record authenticated by Producer and Sales Agent, or their respective successors or assignees.

   Agreed and accepted:

   PRODUCER	SALES AGENT	LABORATORY
   By: ________________	By: ________________	By: ________________
   Its:	Its:	Its:

Schedule of Security Interest Documents

• Security Agreement
• Short-Form Security Agreement
• UCC-1 Attachment: Description of Collateral

Simplified Sample of a Security Agreement

This Security Agreement is made as of __________ between [Producer] (“Debtor”) and [Sales Agent] (“Secured Party”) with reference to the following facts:

1. Debtor and Secured Party have entered into a Sales Agency Agreement as of [the same date as this Security Agreement] for Secured Party’s exclusive representation of certain rights in the motion picture currently entitled [Picture] (the “Picture”).
2. Under the Sales Agency Agreement, Secured Party has agreed to pay Debtor an Advance against and recoupable from Producer’s Share, if any, payable to Debtor under such Sales Agency Agreement.
3. The Parties desire to secure the right of Secured Party to receive the payments and make the recoupments, including the Advance allowed under the Sales Agency Agreement, to represent the Picture, and to exercise its rights and remedies under the Sales Agency Agreement on the terms and conditions of this Security Agreement.

The parties therefore agree as follows:

1. Collateral: The “Collateral” is any and all of the following:
   • (a) General Intangibles, Accounts, Payment Intangibles and Claims: All of Debtor’s right, title and interest: (i) under copyright, trademark, patent or other intellectual property rights in the Distribution Rights in the Picture throughout the Territory for any Distribution Term, whether now existing or later arising, under the Sales Agency Agreement; (ii) all agreements and understandings necessary or convenient to the exercise of such right, title or interest, including those with persons rendering services or materials in connection with the Picture; (iii) all of Debtor’s rights to receive any payment or Producer’s Share under the Sales Agency Agreement, including all related payment intangibles and accounts; (iv) all rights under any Distribution Agreement or other license agreement substantially negotiated or concluded made by Secured Party under the Sales Agency Agreement, including all rights to payment, royalties, accounts, payment intangibles, general intangibles or claims arising under them; and (v) all rights under any infringement or piracy action, arbitration or proceeding with respect to any Distribution Rights in the Picture throughout the Territory for the Term.
   • (b) Goods and Tangible Property: All of Debtor’s right, title and interest in and to: (i) all goods, equipment and physical materials Delivered to Secured Party under the Sales Agency Agreement, including film, sound and video elements, and all documents, advertising, publicity and servicing materials; and (ii) all goods, equipment and physical materials created or manufactured by Secured Party in accordance with the Sales Agency Agreement, including field elements, masters, ad/pub and servicing materials.
   • (c) Proceeds: All proceeds, whether in cash, check, draft, note, com-promise of rights agreement, or other tangible or intangible property realized by Debtor directly or indirectly from any sale, lease, license, transfer, disposition or exploitation of any of the above.
2. Secured Obligations and Rights. The Secured Obligations and Rights are: (i) the exclusive right of Secured Party to represent the Distribution Rights in the Picture throughout the Territory during the Agency Term as set forth in the Sales Agency Agreement; (ii) the right of Secured Party to be paid or recoup its Commission, Recoupable Expenses, Advance and any Interest from Gross Receipts, if any, earned under the Sales Agency Agreement; and (iii) all other rights and remedies of Secured Party under the Sales Agency Agreement, including the right to damages for any attempt by Producer to cancel or terminate the Sales Agency Agreement or enjoin Sales Agent’s representation of the Picture other than as may be allowed under the Sales Agency Agreement.
3. Grant of Security Interest: In order to secure Debtor’s full, faithful and timely performance of all the Secured Obligations and Rights, effective as of the Effective Date of the Sales Agency Agreement or signature of this Security Agreement, whichever is earlier, Debtor grants and assigns to Secured Party a continuing Security Interest in the Collateral. This Security Interest will run with the Collateral and be binding on any of Debtor’s successors or assigns in any part of the Collateral.
4. Resort To Security Interest: Secured Party may resort to its Security Interest in the Collateral if Debtor or any successor in interest attempts to cancel, terminate, rescind or disaffirm the Sales Agency Agreement or any Rights granted to Secured Party for any reason other than as expressly allowed in the Sales Agency Agreement, or if Debtor is otherwise in uncured material default under the Sales Agency Agreement.
5. Rights and Remedies of Secured Party: Secured Party and its assignees will have all the rights and remedies of a secured party under the Law governing secured transactions in the jurisdiction of the Governing Law for the Sales Agency Agreement, including, without limitation, any available remedies of offset and specific performance. To the fullest extent allowed by such Law, Secured Party will be entitled to recover all of its costs and expenses incurred in resorting to or enforcing its Security Interest, including reasonable [outside] attorney’s fees.
6. Debtor’s Representations and Warranties: Debtor warrants and represents to Secured Party that:
   • (a) Debtor has the right and authority to execute and deliver this Security Agreement;
   • (b) Debtor has not granted any other security interest in the Collateral which might interfere with or have priority over the Security Interest granted in this Security Agreement [except for customary security interests to talent guilds or production lenders, each of which shall be promptly disclosed in writing by Debtor to Secured Party];
   • (c) Debtor has not made any other agreements or understandings that might otherwise interfere with the rights granted to Secured Party in this Security Agreement;
   • (d) Debtor is a [corporation / limited liability company / ___________] in good standing duly organized under the laws of _______________ ___________ with company identification number _________________ _______. Debtor is an individual who’s principal residence is __________________________________________.
7. Debtor’s Covenants: Debtor covenants with Secured Party that:
   • (a) Debtor will not change Debtor’s [jurisdiction or organization / principal residence] without giving Secured Creditor at least ten (10) day’s prior Notice of Debtor’s intent to do so along with a statement of the intended new location.
   • (b) At all times upon reasonable request from Secured Party, Debtor will identify to Secured Party Debtor’s current jurisdiction organization or principal residence.
   • (c) Upon reasonable request, Debtor will execute, acknowledge and deliver such other instruments as may be necessary or convenient to confirm, perfect or enforce the Security Interest, including the attached UCC-1 Financing Statement and Short-Form Security Agreement. Debtor authorizes Secured Party to conclude and file with appropriate public authorities to the full extent allowed by Law any such other instruments, including any UCC-1 Financing Statements or continuation statements.
   • (d) Debtor will take commercially reasonable efforts to insure, protect and preserve the Collateral while the Security Interest is in effect.
8. Notices: All notices under this Security Agreement will be in writing and delivered by regular mail, hand delivery or courier to the following addresses:

   Secured Party:	Debtor:
   [Sales Agent]	[Producer]
   [Sales Agent Address]	[Producer Address]

   Each party may change its place for notice by notice duly given.
9. Release: Secured Party agrees to promptly file a release of its Security Interest (such as a UCC-3 Termination Statement) upon the satisfaction of the Secured Obligations or expiry of the Sales Agency Agreement.
10. Governing Law/Forum: This Security Agreement will be governed by the same Law and the same Forum as set forth in the Sales Agency Agreement.
11. Miscellaneous: Defined Terms if not defined where they first appear in this Security Agreement are defined in the Sales Agency Agreement.

    Secured Party:	Debtor:
    [Sales Agent]	[Producer]
    By: _______________	By: _______________
    Its:	Its:

Short-Form Security Agreement

For valuable consideration, receipt of which is acknowledged, [Producer] (“Debtor”) grants and assigns to [Sales Agent] (“Secured Party”) a continuing Security Interest in and to the Collateral described on the attached Description of Collateral with regard to the motion picture currently entitled [Picture] upon the terms and conditions of that certain Security Agreement between the parties dated as of the same date as this Short-Form Security Agreement.

The Motion Picture was registered for copyright in the United States Copyright Office on ______________ under the name ____________ _______ showing ________________ as author(s) [of a work for hire] and ______________________ as copyright claimant(s), and given U.S. Copyright Office Registration Number PA ______________.

The address for notice to each party is:

In Witness Whereof, the Parties have executed this Security Agreement as of [Date] in [City, State, Country].

[Attach Notary Seal for Debtor’s Signature]

Description of Collateral

The “Collateral” means any and all of the following with respect to that certain Sales Agency Agreement made as of [Date] between [Producer] (“Debtor”) and [Sales Agent] (“Secured Party”) regarding the motion picture currently entitled [Picture] (the “Picture”).

• (a) General Intangibles, Accounts, Payment Intangibles and Claims: All of Debtor’s right, title and interest: (i) under copyright, trademark, patent or other intellectual property rights in the Distribution Rights in the Picture throughout the Territory for any Distribution Term, whether now existing or later arising, under the Sales Agency Agreement; (ii) all agreements and understandings necessary or convenient to the exercise of such right, title or interest, including those with persons rendering services or materials in connection with the Picture; (iii) all of Debtor’s rights to receive any payment or Producer’s Share under the Sales Agency Agreement, including all related payment intangibles and accounts; (iv) all rights under any Distribution Agreement or other license agreement substantially negotiated or concluded made by Secured Party under the Sales Agency Agreement, including all rights to payment, royalties, accounts, payment intangibles, general intangibles or claims arising under them; and (v) all rights under any infringement or piracy action, arbitration or proceeding with respect to any Distribution Rights in the Picture throughout the Territory for the Term.
• (b) Goods and Tangible Property: All of Debtor’s right, title and interest in and to: (i) all goods, equipment and physical materials Delivered to Secured Party under the Sales Agency Agreement, including film, sound and video elements, and all documents, advertising, publicity and servicing materials; and (ii) all goods, equipment and physical materials created or manufactured by Secured Party in accordance with the Sales Agency Agreement, including field elements, masters, ad/pub and servicing materials.
• (c) Proceeds: All proceeds, whether in cash, check, draft, note, compromise of rights agreement, or other tangible or intangible property realized by Debtor directly or indirectly from any sale, lease, license, transfer, disposition or exploitation of any of the above.