SUCCESS SPOTLIGHT PRODUCTION / MANAGEMENT TERMS/CONDITIONS AND AGREEMENT
As a participant (“Client”) to the Success Spotlight Production, you agree to the following Terms and Conditions (“Agreement”) by accessing or using this Web Site, registering for services offered on the Web Site, making the payment and/or or by accepting, uploading, submitting or downloading any information or content from or to the Web Site. These Terms and Conditions constitute a legal Agreement between you and Producer, and shall apply to your, and use of the Web Site and the services even after termination. Producer and Client shall be individually referred to throughout this Agreement as the “Party” and collectively as the “Parties.”
Whereas, the Producer owns, controls or otherwise has the exclusive right to produce a television series with a title to be determined at a later date (hereafter referred to as the “Show”).
Whereas, Client wishes to engage the production services of Producer in order to produce a television segment (the “Segment”) which will highlight the Client’s topic (the “Work”) and which Segment will become part of the larger long-form television Show (the Segment and the Show collectively are the “Program(s)”).
Whereas, among other things, the Segment and Show are intended to showcase Client and Client’s business in order to generate and elevate Client’s reputation and credibility.
Whereas, the Parties wish to set forth in this Agreement the terms upon which Client and Producer shall render in connection with production of the Segment;
Now, therefore, in consideration of the mutual promises and undertakings set forth herein, and intending to be legally bound hereby, the Parties agree as follows:
1. Producer Obligations. Producer shall perform the production and management services listed below on behalf of Client and the Work (collectively the “Services”).
1.1 Production Services. Producer shall (i) produce and edit one (1) four-minute Segment promoting Client and Client’s Work with the mutually agreed upon production date to be determined, (ii) provide all necessary creative and production work relating to the overall production management and post-production supervision of the Segment and Program, and (iii) provide the on-air talent to host the Segment (“Host”). Producer will exclusively own all rights in Segment and Programs it produces under this Agreement including the completed, closed captioned and finalized version of the Programs (“Final Master”).
1.2 Media Management. Producer will exclusively control all airings of the Program and will provide media management for the Program including but not limited to developing a media plan (and updating the plan on an ongoing basis), serve as a liaison between media and production vendors for accurate billing and reconciliation and arranging for payment of all media placement and media agency fees. Producer will provide these Media Management services for a period of twelve (12) consecutive weeks beginning on a date to be determined solely by Producer.
2. Client Obligations.
2.1 Name/Likeness. Client agrees to appear in the Program as an on camera spokesperson for the Work. Client grants to Producer the right and permission to record and to use Client’s name, likeness, image, voice, appearance, biographical information and performance as embodied in the Programs and in advertising, publicity or promotion related thereto and may sub-license such rights for the purposes of fulfilling its obligations hereunder. This grant includes without limitation the right to edit, mix or duplicate and to use or re-use the Programs in whole or part. Client waives any and all right of content approval for the Programs.
2.2 Client Intellectual Property. Client agrees to provide the use of applicable Client trademarks, copyrights and other intellectual property as needed for use in the Program.
3. Ownership Rights.
3.1 Producer Intellectual Property. All right, title, and interest in and to the entire editorial, visual, audio and graphic content of the Programs, including without limitation, (i) the Programs and the performances recorded therein and any other marketing materials prepared in connection thereto, (ii) all raw footage shot in the course of producing the Programs, (iii) all trademarks, service marks or copyrights for the Programs, (iv) all musical compositions included in the Programs, (v) all advertisements and promotional materials developed in connection with the promotion, marketing and distribution of the Programs and (vi) all websites, web domains, or web content created for the Programs ((i) through (vi) being collectively referred to as “Intellectual Property”) shall be and remain the sole property of Producer. Client shall not acquire any right, title or interest in the Intellectual Property by virtue of this Agreement or otherwise. Client hereby assigns and agrees to assign to Producer all of Client’s right, title and interest in the Intellectual Property. Client shall not in any way or at any time dispute or attack the validity or harm or contest the rights of Producer in or to any of the Intellectual Property.
3.2 Limited License. Notwithstanding the foregoing, Producer hereby grants to Client a non-exclusive, non-transferable, royalty-free license to use the Segment in non-broadcast media only (e.g., online social media sites such as Facebook, Youtube, etc). Producer will work with Client to provide media files for such use.
4. Confidentiality. All price lists, written and unwritten marketing plans, partnerships, financing, techniques, Services information and specifications and sales and transaction data, and other information relating to Producer’s business and/or Services shall constitute confidential information of Producer (“Confidential Information”). Client shall hold and shall require its agents, employees and representatives to hold all Confidential Information of Producer in the strictest confidence. Without the prior written consent of Producer, Client will not (and will not permit their agents, employees and representatives to) use, disclose, divulge or otherwise disseminate any Confidential Information of Producer to any person or entity, except that Client may disclose Confidential Information to its attorney and such other person as maybe required in order to perform or to enforce the provisions of this Agreement.
5. Non-Circumvention. Client hereby agrees not to circumvent, avoid, bypass, or obviate, directly or indirectly, the intent of this Agreement through any transaction, transfer, pledge, agreement, loan, lease, assignment, or otherwise. Client (including affiliates of such parties) agrees that it will not attempt, directly or indirectly, to contact parties first introduced to the Client by Producer on matters described in this Agreement or contact or negotiate with any confidential source provided by Producer, except through Producer or with the expressed written consent of Producer as to each such contact including third parties who may be interested in providing or receiving financing of any kind (a “Financing”) or in entering into a transaction, including, without limitation, a joint venture, collaboration, strategic alliance or other similar transaction (any such transaction, a “Transaction”). Any violation of this provision shall be deemed an attempt to circumvent this provision, and the Client shall be liable for damages in favor of the circumvented party.
6. Term. After Producer has produced the Program as specified in Section 1.1 above, Producer will provide the Media Management Services provided for in Section 1.2 above for a period of twelve (12) consecutive weeks beginning on a date to be determined solely by Producer.
7. Warranties. Client represents and warrants that: a) Client is the sole owner of the copyright to the contents of the Work; b) the Work is not libelous or infringe upon any statutory or common law right of privacy of any third party; c) any trademarks and/or trade names associated with the Work are owned by Client or that Client has written permission to use them; and d) Client has the right to enter into this Agreement.
8. Indemnities. Client agrees to indemnify Producer and its employees, shareholders, directors, representatives, successors, and assigns from all and any manner of claims, liabilities, damages, expenses (including reasonable attorney's fees), awards, and judgments resulting from claims of (i) third parties regarding ownership, libel, slander, plagiarism, privacy, misappropriation, and similar claims arising from publication of the Work; (ii) Client’s breach of any warranty in this Agreement; (iii) any Client agreements and/or transactions with Lenders. Producer agrees to notify Client promptly of any claim for indemnity under this Agreement. Producer may be represented in any proceeding by counsel of its choice; Client may retain additional counsel at its own expense.
9. Past Due Amounts. Past due amounts owing by Client will bear interest at the rate of twenty-six percent (26%) per annum; provided, however, that to the extent that Client has a good faith dispute with respect to any Payment, such Payment shall not accrue interest nor be deemed a failure to pay or perform hereunder.
10. Miscellaneous.
10.1 Entire Agreement. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, whether written or oral, between them with respect to the subject matter hereof. Each Party has executed this Agreement without reliance upon any promise, representation or warranty other than those expressly set forth herein. Each Party acknowledges that (i) it has carefully read this Agreement, (ii) it has had the assistance of legal counsel of its choosing (and such other professionals and advisors as it has deemed necessary) in the review and execution hereof, (iii) it has conducted such investigation, review and analysis as it has deemed necessary to understand the provisions of this Agreement and the transactions contemplated hereby.
10.2 Amendment. No amendment of this Agreement shall be effective unless embodied in a written instrument executed by all of the Parties.
10.3 Disclaimer. Unless otherwise expressly provided in this Agreement, Producer does not, and cannot, guarantee to Client sales of the Work in any amount or at any time and Producer does not guarantee any particular success, rate of return or performance of any of the production/management provided pursuant to its Services.
CLIENT ACKNOWLEDGES AND AGREES THAT ALL RESOURCES AND SERVICES PROVIDEDUNDER THIS AGREEMENT BY PRODUCER ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY, CONDITION, GUARANTY OR REPRESENTATION OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN LAW OR IN FACT, ORAL OR IN WRITING, INCLUDING WITHOUT LIMITATION, ACCURACY, NON- INTERRUPTION, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE LIKE.
IN NO EVENT SHALL PRODUCER NOR ANY RELATED INDIVIDUAL OR ENTITY OF PRODUCER BE LIABLE TO CLIENT, A RELATED ENTITY OF CLIENT OR ANY THIRDPERSON FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST SAVINGS, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITIES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES PROVIDED HEREUNDER, WHETHER BASED IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR OTHERWISE, EVEN IF PRODUCER, OR A RELATED INDIVIDUAL OR ENTITY OF PRODUCER, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SHOULD HAVE FORESEEN DAMAGES.
10.4 Governing Law/Dispute Resolution. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts without regard to conflict of laws principles. The Parties irrevocably submit to the venue and jurisdiction of Essex County, Massachusetts. If any dispute arises out of or relates to this Agreement, or the breach thereof, the Parties agree first to try in good faith to resolve the dispute by mediation administered by the American Arbitration Association (“AAA”) before resorting to arbitration. Thereafter, any unresolved controversy or claim arising out of or relating to this Agreement that cannot be resolved through mediation or negotiation shall be conclusively settled by binding arbitration in accordance with the Commercial Rules of the AAA in Beverly, Massachusetts and judgment upon the award obtained in such arbitration may be rendered in any court having jurisdiction thereof and such determination shall not be subject to judicial review. The Parties shall endeavor in good faith to select an arbitrator within ten (10) business days of the occurrence of any event giving rise to arbitration hereunder (an "Event"). All expenses inherent to the mediation/arbitration, such as the charges of the mediator/arbitrator, required travel and other expenses of the mediator/arbitrator and any expenses of the AAA or of any arbitration service used by the Parties, and the cost of any witnesses, proofs or expert advice produced at the direct request of the mediator/arbitrator, shall initially be borne equally by the Parties. The arbitrator shall have the power to award recovery of any or all of the foregoing expenses to the prevailing Party.
10.5 Survival. The provisions of Sections 3.1 (“Ownership Rights”), 7 (warranties), 8 (indemnitee), 10.3 (disclaimer) and 10.4 (Governing Law/Dispute Resolution) shall survive the termination of this Agreement.