By providing the Licensed Films (defined below) to Pacific Arts Movement d.b.a San Diego Asian Film Foundation (“Pac Arts”, “we”, “our” and “us”) and returning the above Accepted Filmmaker Confirmation you (“you” or “Licensor”; together with Pac Arts, the “parties”) acknowledge and agree to be bound by the terms of this License Agreement (this “Agreement”).
1) Grant of Rights. You hereby grant Pac Arts the non-exclusive, US rights to reproduce, adapt, perform, publish, display and collect receipts with respect to the Licensed Films and Film Clips (defined below) on either a stand-alone basis or in connection with other audio or audio visual productions to the extent reasonably necessary for us to include the Licensed Films and Film Clips in the Programs. “Film Clip(s)” means excerpts or stock footage derived from any or all of the Licensed Films whether created by Pac Arts or Licensor. “Licensed Film(s)” means each full motion video program or motion picture (and the accompanying principal audio portion of each) you submitted to Pac Arts in connection with the above Accepted Filmmaker Confirmation. “Programs” means the Annual San Diego Asian Film Festival.
2) Fees. There shall be no duties of accounting or any other fees, royalties or duties of accounting or any other amounts due to Licensor, or any third party, for, or in connection with, the licenses granted to Pac Arts, and as applicable, Cable Providers pursuant to this Agreement.
3) Term and Termination. This Agreement shall commence as of the date you return the Accepted Filmmaker Confirmation above and will end on December 31, 2020. (the “Term”) The Term shall automatically renew for successive one (1) year terms unless a party provides the other party with notice of its intent to terminate this Agreement no later than ninety (90) days prior to the end of the initial or then current term. Either party may terminate this Agreement on at least thirty (30) days’ prior written notice in the event the other party materially breaches this Agreement and fails to cure such breach within a thirty (30) day period. Further, and without limitation to any other right or remedy Pac Arts may have under this Agreement at law or in equity, Pac Arts may terminate this Agreement immediately if Licensor breaches any of the representations or warranties set forth in Section 7 of this Agreement.
4) Licensed Films and Film Clips Requirements. Licensor further agrees and acknowledges that:
(a) Each Licensed Film and Film Clip shall be of broadcast quality and professionally produced.
(b) The Licensed Films and Film Clips will be delivered to Pac Arts via a mutually agreed delivery method and, if applicable, you will provide information about the Licensed Films and Film Clips (also known as meta data) in a format acceptable to Pac Arts and, as applicable, any Cable Provider.
(c) The source video or other medium for each Film Clip or Licensed Film you deliver will not, except as required by applicable law or regulation, contain or have embedded any data, information, images, sounds or other material other than the primary video and accompanying audio stream of such Film Clips and Licensed Films. Licensor further acknowledges and agrees that both Pac Arts and Cable Provider, as applicable, shall have the right to strip or block any and all such additional material from the Licensed Films or Film Clips.
(d) No Film Clip or Licensed Film you deliver shall contain any advertising or sponsorships.
(e) This Agreement does not require Pac Arts to include any Licensed Film or Film Clip in any Programs. The inclusion or continued inclusion of any Licensed Films or Film Clips in any Program shall be in Pac Arts’ sole discretion.
6) Promotion. Pac Arts acknowledges that the Licensed Films are the property of Licensor and that Pac Arts shall not acquire any proprietary rights therein other than as expressly provided in this Agreement. Licensor acknowledges and agrees that Pac Arts and, as applicable, any Cable Provider, shall have the right to advertise and promote the exhibition of the Film Clips and Licensed Films and that Pac Arts and, as applicable, any Cable Provider, may use the Licensed Films and Film Clips in promotional materials promoting the Programs. Licensor shall not use, and no right or license is herein granted with respect to, any of the trade names, trademarks, copyrights, styles, slogans, titles, logos, service marks or any other intellectual property of Pac Arts or any Cable Provider.
7) Representations and Warranties. Licensor represents, warrants and covenants that (i) it has the requisite power and authority to execute and deliver this Agreement and to fully perform its obligations hereunder; (ii) it is not subject to any contractual or other legal obligation that will in any way interfere with its full performance of this Agreement; (iii) the individual submitting the Filmmaker Confirmation Page on behalf of Licensor has the authority to do so and is over the age of eighteen (18); (iv) it has and will have all rights necessary to grant the licenses granted herein, free and clear of all liens, restrictions, charges, claims and encumbrances; (v) it has obtained and will maintain all licenses, permits, exemptions, authorizations and consents reasonably necessary for Pac Arts, and as applicable, any Cable Providers, to exercise the rights granted under the licenses set forth herein; (vi) no Licensed Film and no Film Clip, as delivered by Licensor, (yy) is or will be illegal, libelous, slanderous or defamatory; or (zz) violates or infringes or will violate or infringe the civil or property rights, copyrights, music synchronization or performance rights, trademark rights, patent rights, rights of privacy or publicity or any other rights of any person; and (vii) each Licensed Film and each Film Clip, as delivered by Licensor, will comply with all regulations of the Federal Communications Commission applicable to the (xx) the Film Clips, (yy) the Licensed Films, and/or (zz) Pac Arts’ or, as applicable, a Cable Provider’s distribution thereof. Upon Pac Arts’ request, Licensor shall provide all records demonstrating compliance with the above clauses (i) though (viii) of this Section 7.
8) Indemnification and Other Remedies.
(a) Subject to Section 8(b), Licensor shall indemnify, defend and hold harmless Pac Arts, and as applicable, any Cable Provider, and each of their respective affiliates, officers, directors, members, shareholders, employees and agents (each an “Indemnified Party”) from and against any and all losses, settlements, claims, actions, suits, proceedings, investigations, judgments, awards, damages and liabilities, including, without limitation, any liabilities associated with Pac Arts’ indemnification obligations to Cable Provider (collectively, “Losses” and, individually, a “Loss”), arising from or related to (i) any breach or alleged breach of this Agreement by Licensor or any of its employees, agents or affiliates; or (ii) the exercise of any rights granted in the either the Licensed Films or Film Clips in compliance with the terms of this Agreement (each of (i) and (ii) a “Claim”; collectively “Claims”). Further, Licensor shall reimburse any Indemnified Party for any and all legal, accounting and other fees, costs and expenses (collectively, “Expenses”) reasonably incurred by any of them in connection with investigating, mitigating or defending any such Loss.
(b) Pac Arts will provide Licensor with prompt written or electronic notice of any Claim, but the failure to notify Licensor will not relieve Licensor from any liability or obligation which the Licensor may have to an Indemnified Party except to the extent of any material prejudice to Licensor resulting from such failure or lack of notice. If any such action, suit, proceeding or investigation is brought against Pac Arts, Licensor will be entitled to participate in the defense thereof with counsel satisfactory to Pac Arts (who shall not, except with the consent of an Indemnified Party, be counsel to an Indemnified Party). Licensor shall give written notice to Pac Arts of its election to assume the defense of a Claim within fifteen (15) days of being notified of such a Claim. Licensor shall not enter into any settlement that imposes any liability on any Indemnified Party without the prior written consent of such an Indemnified Party.
(c) Except for amounts owed pursuant to Section 8(a), IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PAC ARTS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT IS LIMITED TO $10,000.
(d) All rights, powers and remedies afforded to a party hereunder, by law, in equity or otherwise shall be cumulative (and not alternative).
9) Notices. All notices to Licensor pursuant to this Agreement shall be given either electronically or in writing to the Licensor according to the Primary Contact Information provided in the Accepted Filmmaker Confirmation and shall be deemed given when sent by Pac Arts. All notices to Pac Arts pursuant to this Agreement shall be given in writing to Pac Arts at 2508 Historic Decatur Road #140, San Diego, CA 92106, Attn: Executive Director, and shall be deemed given upon receipt.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of California, without regard to principles of conflict of laws, and all actions brought hereunder shall be brought and resolved solely and exclusively in, and the parties hereby irrevocably consent to, the exclusive jurisdiction and proper venue of, the state and federal courts located in San Diego County, California. Further, the parties waive any objections thereto based on any ground including improper venue or forum non-conveniens.
(b) Sections 3 (“Fees”), 7 (“Representations and Warranties”), 8 (“Indemnification and Other Remedies”), 9 (“Notices”) and 10 (“Miscellaneous”) shall survive the expiration or termination of this Agreement for any reason.
(c) Nothing in this Agreement will be deemed to create any agency, employee-employer relationship, partnership, or joint venture between the parties. Except as otherwise specifically provided in this Agreement, neither party will have or represent that such party has the right, power or authority to bind, contract or commit the other party or to create any obligation on behalf of the other party. Except as expressly provided herein, this Agreement is made and entered into for the sole protection and benefit of the parties, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with this Agreement.
(d) This Agreement and the Accepted Filmmaker Confirmation above constitutes the entire understanding between Licensor and Pac Arts concerning the subject matter herein, and supersedes any and all other prior and contemporaneous agreements, whether oral or written, pertaining to the subject matter herein. This Agreement and the Accepted Filmmaker Confirmation may not be modified or amended, and no provision of this Agreement or the Accepted Filmmaker Confirmation may be waived, except in writing executed by each of the parties. This Agreement will bind and benefit the parties and their respective successors and assigns. The invalidity or unenforceability of any provision shall in no way affect the validity or enforceability of any other provision.