ARTS ALLIANCE LIMITED
STANDARD TERMS & CONDITIONS OF BUSINESS
These terms apply where referenced in a Licensing Agreement between the Licensee (hereafter referred to as “you” or “licensee”) and Arts Alliance Limited (hereafter referred to as “us” or “we”). A Licensing Agreement together with these terms form “this Contract”. In the event of conflict between a Licensing Agreement, and these terms, then the Licensing Agreement will prevail.
1 We grant you a licence to exhibit the Title(s) theatrically at the theatre as set out under License Grant (hereafter “the Theatre) in the Licensing Agreement during the Licence Period up to the Maximum Number of Performances agreed in the Licensing agreement.
2 All other rights in relation to the Titles(s) are reserved. You will not exhibit the Titles(s) other than as expressly licensed under Clause 1. Nothing in this Contract transfers intellectual property rights.
3 You shall be responsible for obtaining and paying for any licences required in relation to exhibition of the Titles(s) in the venue including without limitation local government licences, and licences from collecting societies such as the Performing Rights Society (or its equivalent in other jurisdictions).
4 Unless agreed otherwise in the Licensing Agreement the Titles(s) shall not form part of a programme where other content (including but limited to alternate content, event cinema or feature films) are being exhibited including (without limitation) as part of a double bill.
5 You may only exhibit the Title(s) in their entirety with original continuity of subject in linear form, and you must exhibit all the copyright statements and all the credits in the Titles(s). You must not insert additional intervals or other breaks in the programme unless approved by us.
6 For the avoidance of doubt all rights not specifically granted in this Contract or the Licensing Agreement are reserved by us.
TECHNICAL DELIVERY OF CONTENT
7 Supply of the Titles will either be by live satellite (or other means of live streaming) or in a pre-recorded format (“the Materials”)
7.1 Where the Title(s) are supplied live you warrant that the Theatre is technically capable of receiving content either by live satellite (or other live streaming formats) and will provide us with all necessary technical delivery information in a timely manner but at the very latest twenty one days prior to delivery of the Materials; and
7.2 Comply with all our reasonable requests to run test screenings and other operations deemed necessary to ensure the satisfactory delivery of the Materials; and
7.3 Where the supply of the Materials is in a pre-recorded format delivery shall either be in the form of an encoded industry standard hard drive, electronic delivery or other means of delivery now known or hereafter invented. You shall provide us with all the necessary information including, but not limited to, correct and up to date delivery information as well as necessary server information for us to supply a KDM. All pre-recorded Materials shall be delivered in good time for the start of the License Period; and
7.4 You warrant that all digital projection, servers and other technical facilities are fully compliant with the prevailing DCI cinema standard. For the avoidance of doubt and unless agreed otherwise prior to the execution of the Licensing Agreement all content will be supplied to DCI specifications.
7.5 We shall not be liable for any non-delivery resulting from any failure on your part to provide the correct information in a timely manner, your failure to comply with our reasonable requests in relation to the delivery of content and/or any failure to properly maintain/upgrade equipment. For the avoidance of doubt we will deliver content during normal working hours and it is your responsibility to ensure the Theatre is staffed to receive the content.
7.6 It is your responsibility to advise us as soon as possible, but in any event no later than 4 working days prior to the start of the License Period if you have not received the Materials.
8 Where we have supplied Materials in a physical format including, but not limited to, hard drive these are provided on loan for the duration of the License period. You are responsible for such Materials from the moment of delivery to you to the such time as the Materials are delivered back to our office or lab. It is your responsibility to ensure that Materials are returned to us in a timely manner, but in any event no later than seven days following the end of the License Period and at your own expense. We reserve the right to charge you for any lost, damaged or non-returned Materials at the going market rate.
9 You agree to do all reasonable things to ensure that no unauthorised exhibition, duplication or recording of the Materials occurs by ensuring that Materials are insured, stored securely and only handled by competent and trusted employees of your organisation.
REPORTING & PAYMENT
10 Where required you will provide us with reports, in a mutually agreed format, of pre-sales information for each of the Title(s).
11 In exchange for the grant of the licence in Clause 1, and performance of our obligations under the Contract, you will pay us:
11.1.1 The Minimum Guarantee; and/or
11.1.2 A sum equivalent to the Box Office Percentage of the Total Box Office Income (after deduction of the Minimum Guarantee) (in these terms the “Percentage Payment”); and
11.1.3 Any agreed Handling, Courier or other Charges applicable to this Contract.
12 Where the Licensing Agreement specifies “Payment in Advance” then you have no rights under this Contract, and we have no obligations under this Contract, until we have received the Minimum Guarantee in cleared funds.
13 We will invoice you for the Handling and Courier Charges on or after the date set out in the Licensing Agreement.
14 We will invoice you in the currency agreed and set out in the Licensing Agreement.
15 In these terms the “Total Box Office Income” means the total box office receipts in respect of the exhibitions of the Title(s) licensed under the Contract. Tickets for the exhibitions shall be sold at the Theatres’ standard prevailing ticket prices, or other prices agreed between us. Where complimentary tickets for such exhibitions are given then that shall be deemed to be a sale of a ticket at the Premises’ most expensive ticket price and the Total Box Office Income shall be increased accordingly.
16 You shall send to us by post, fax or email an accurate and true statement of Total Box Office Income no later than seven working days after the end of the Licence Period (“the Box Office Return”). If you do not then the Total Box Office Income will be deemed to be the figures supplied by either i) Rentrak or ii) where the Rentrak figures are not reasonably available to us an amount equal to 10 times the Minimum Guarantee or iii) where the Rentrak figures are not reasonably available and where no Minimum Guarantee applies then a sum calculated equal to the a maximum occupancy screening.
17 If you fail to exhibit the Film(s) other than as a result of a Force Majeure Event (defined below) then the Total Box Office Income will be deemed to be ten times the Minimum Guarantee or the value of a maximum occupancy screening, whichever is greater.
18 Following our receipt of the Box Office Return, or if earlier the date seven days after the end of the Licence Period, we will invoice you for the Percentage Payment. That invoice will be sent to the Invoicing Address specified in the Licensing Agreement.
19 All sums set out in the Licensing Agreement are expressed exclusive of United Kingdom Value Added Tax or equivalent sales taxes in other jurisdictions. Where applicable we may invoice, and you shall pay, the Value Added Tax (or equivalent) thereon at the rate and in the manner prescribed by law, from time to time.
20 Where deductions or adjustments are required in relation to Withholding Tax you will advise us in advance so that we can provide the necessary paperwork from the UK tax authority to reduce any double taxation liability.
21 No deductions or adjustments, of whatever kind, other than those set out in clause 19 and 20 shall be permitted unless expressly agreed by us in writing and supported by any requested documentation.
22 You must pay all invoices validly raised by us no later than twenty eight days from the date we sent the invoice to you (in these terms “the Due Date”). If you do not then we may charge you interest on any amount validly invoiced that has not been paid during the period between the Due Date and the date of payment at a rate of 4% per annum above the LIBOR rate compounding on a daily basis until payment is made. Where applicable we also reserve the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
23 You will make payment to us by wire transfer into the bank account set out on our invoice. Payment by other means is acceptable if approved by us in advance.
24 In addition to the provision for debt interest in clause 22 we reserve the right to immediately suspend any outstanding rights you have under this Contract and any other contract or agreement you have with us until such debt is settled in full.
PUBLICITY MATERIALS & MARKETING ACTIVITY
25 In order to maximise the revenue available he parties will agree in writing a marketing plan for the Title(s) which will be delivered by you with support from us.
26 You may use the Publicity Materials we deliver to you (“Delivered Publicity Materials”) in order to promote your exhibition of the Titles(s) during the Licence Period, but not for any other purpose.
27 Following the Licence Period you will return the Delivered Publicity Materials to us. You shall not sell or otherwise dispose of the Delivered Publicity Materials without our consent.
28 If the Delivered Publicity Materials include stills (in whatever format) then you may reproduce these stills in press releases and adverts for your exhibition of the during the Licence Period.
29 You may not remove any branding from the Delivered Publicity Materials or any copies of the Delivered Publicity Materials. You may not alter the Delivered Publicity Materials in any way. You must display all copyright statements and credits as specified in the Delivered Publicity Materials or as otherwise specified by us whenever you display or reproduce the Delivered Publicity Materials. You may not make an endorsement of any product or sponsorship relating to the Titles(s).
30 All marketing and publicity materials relating to the Title(s) and created by you are subject to our prior approval.
31 We warrant to you that the relevant copyright owners in the Title(s) have authorised us to grant the licence set out in this Contract.
32 We warrant to you that any material we deliver to you will be in a good condition and fit for the purpose of theatrical exhibition.
33 Except as expressly stated in these terms, all warranties, all conditions, and all intellectual property licences (whether implied by statute, common law or otherwise) are hereby excluded to the fullest extent permitted by law.
34 You may not disclose information about pricing in this Contract. We may identify you as a customer of ours.
35 Nothing in this Contract limits the liability of a party for: i) death, personal injury or fraud; or ii) for infringement of intellectual property rights; or iv) for breach of Clause 34.
36 Subject always to Clause 35 our total aggregate liability to you under or in relation to the subject matter of this Contract is limited to two times the total of all sums then paid and/or payable by you to us under this Contract.
37 Subject always to Clause 35 in no event shall we be liable to you, for any: i) loss of profits, loss of business, loss of revenue, loss of goodwill, loss of data or unrealised anticipated savings; and/or ii) indirect or consequential loss or damage; and/or iii) non delivery or delay in delivery of Materials or content, even if caused by our negligence, (in each case) to the extent suffered or incurred under or in connection with the subject matter of this Contract.
38 Nothing in this Contract creates any relationship of partnership or agency between you and us.
39 For the purposes of this Contract, the expression “Force Majeure Event” shall mean any cause preventing or delaying the performance by a party to this Contract of its obligations and which arises from acts, events, omissions, happening or non- happenings beyond its reasonable control including (without limitation):
39.1 Power failure, breakdown in equipment, failure of suppliers, telecommunications failures, computer viruses (or other similar disruptive computer coding) or internet down time;
39.2 Strikes, lockouts, blockades, embargoes or industrial disputes by any labour not employed by the party affected.
40 Neither party shall in any circumstances be liable to the other for any loss of any kind whatsoever (including but not limited to any damages) whether directly or indirectly caused to or incurred by that other party by reason of any failure or delay in the performance of its obligations hereunder which is due to Force Majeure Event.
41 No party may assign its rights and/or obligations under this Contract without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
42 The Licensing Agreement and these terms constitutes the entire agreement between the parties relating to the subject matter of this Contract and supersedes and extinguishes any prior drafts, agreements, undertakings, representations, warranties, and arrangements of any nature between the parties in relation to the subject matter of this Contract.
43 We will only accept responsibility for the payment of a Virtual Print Fee (“VPF”) or Alternative Content Fee (“ACF”) (or similar) charge where we have agreed to do so in writing at the time the Licensing Agreement is issued or at such times prior to the License start date. Any other claims for VPF or ACF charges will be for your own account. For the avoidance of doubt where we have agreed to pay such VPF or ACF charge we will only do so for the agreed performances and on the agreed dates. Any VPF or ACF charge applicable to additional screenings not approved by us will be for your own account. VPF and ACF payments shall only be made to a third party integrator who has been appointed by you to manage the digital rollout in the Theatre(s). Furthermore, no payment shall be made unless the appropriate contract or Free Rider Agreement has been executed.
44 No variation of the Contract shall be effective unless made in writing and signed by you and us.
45 Nothing in this Contract creates legal rights for any person other than you or us.
46 If a provision of this Contract is held to be illegal, invalid or unenforceable under any enactment or rule of law in any jurisdiction, then such provision shall, to that extent, be deemed not to form part of this Contract and the legality, validity and enforceability of the remainder of this Contract shall not be affected.
47 No failure or delay in exercising, any right or remedy in connection with this Contract shall operate as a waiver of that right or remedy. No single or partial exercise of any right or remedy under this Contract shall preclude any other or further exercise of that right or remedy or the exercise of any other right or remedy. A waiver of any breach of this Contract shall not be deemed to be a waiver of any subsequent breach.
48 All communication between the parties about this Contract shall be in writing and delivered by hand, registered post, courier, fax or email communication to the registered office, or other address advised by the parties, and addressed to the Chief Executive Officer (or similar official) in each company.
49 This Contract shall be interpreted under and performed in accordance with and governed by English Law. All disputes between you and us in relation to this Contract shall be heard exclusively in the English Courts.