TERMS & CONDITIONS – LICENSOR

FANFORCE’S TERMS OF TRADE:

  1. FILM/S:
    The Licensor hereby warrants and represents that: (a) it owns or controls all Rights Licensed in the Film/s in the Territory for the Term free and clear of all claims, liens and encumbrances; (b) all Delivery Materials needed by FanForce to exercise the Rights Licensed are presently being stored at the Location of Delivery Materials and the Licensor hereby agrees to provide FanForce with all such Delivery Materials and Marketing Materials on the Delivery Date.
  1. RIGHTS
    The Licensor hereby grants to FanForce in the Territory the Rights Licensed for the Term of this Agreement, and agrees to supply FanForce with the Delivery Materials and Marketing Materials on the Delivery Date (ie: key artwork, trailer)
  1. TERRITORY
    The Territory in which FanForce may exercise its Rights Licensed hereunder is listed in the Deal Terms.
  1. TERM
    The term of FanForce’s rights is listed in the Deal Terms, unless sooner terminated pursuant to the terms hereof. 
  1. FANFORCE OPERATIONS
    Depending on the Rights Licensed, FanForce will list the Film/s on its online platforms so that people or entities may book tickets or screenings of the Film/s in the Territory. All FanForce prices on the FanForce TV site shall be in United States Dollars until otherwise changed.
    FanForce, at its discretion, shall determine the best time, date, order and length of release windows for the Rights Licensed in the Deal Terms and retains the right to change, amend or cancel plans at its discretion.
  1. MARKETING MATERIALS
    The Licensor agrees to provide to FanForce copies of any of the Marketing Materials that the Licensor possesses. The Licensor hereby grants FanForce the right and licence in any Marketing Materials for the Film/s as provided by the Licensor or accessed by FanForce from any other medium, to access, reproduce, adapt, market, promote, exploit and use in any medium now known or later devised to promote the Film/s. The Licensor also grants FanForce the right to create any additional marketing materials to promote the Film/s including, but not limited to, promos, posters, trailers and graphics. FanForce shall have the right to advertise and promote the Film/s either publicly or privately on its social media platforms or any other avenues or as part of any other campaign or advertising it determines.
  1. Force Majeure
    FanForce shall not be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including , but not limited to, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, epidemics and pandemics or health orders, and interruptions, loss or malfunctions of utilities, communications, issues with suppliers, hosts, venues or issues with computer (software and hardware) services; it being understood that FanForce shall use reasonable efforts to resume its obligations if practicable under the circumstances.
  1. LICENSOR’S FEES
    In consideration of the grant of the Rights Licensed to FanForce by the Licensor, FanForce agrees to pay the Licensor the Fees into the Licensor Account as referred to in the Deal Terms and as set out in clause 9 below. 
  1. FEES AND CHARGES
    The Licensor Fees payable by FanForce to the Licensor shall be less all applicable taxes, bank fees, exchange rates, online booking fees and other third party deductions such as, without limitation, affiliate program fees, refunds, transactional costs as well as new or outstanding debts for publicity and advertising (“P&A”) costs owing to FanForce for marketing or promotional assets or services (“Charges”). FanForce shall be entitled to deduct all such Charges from Fees payable to the Licensor.
  2. DCP COSTS
    FanForce shall be entitled to charge the Licensor for DCP creation costs in order to be able to screen the Film/s in the correct technical specs if one is not supplied. FanForce shall have the right at its discretion to create a DCP from the Film/s materials in order to meet its screening obligations.
    The Fees payable by FanForce shall be less all DCP Charges to circuit the Film/s such as any Charges to ingest, conversions and technical checks charges.
  1. TIPPING POINTS
    For events using a ‘Tipping Point, the Fees payable by FanForce to the Licensor shall be calculated as the percentage outlined in the Deal Terms of receipts received after the ‘Tipping Point’.
    Tipping Points are determined by assessing many factors, including but not limited to, DCP delivery fees, virtual print fees fees, audio-visual fees, tech fees, mic fees, walk-in slide fees, testing fees, furniture fees, booking fees, holiday loading fees, peak / off-peak loadings, extra staffing costs, transactional costs and can vary due to dates, times, locations, venues, and seasons. FanForce determines these rates directly with its suppliers.
    FanForce reserves the right to, at its discretion, to ‘Force Tip’  screenings close to the deadline that are close to reaching the Tipping Point. This will be on a case-by-case basis for events it determines will likely meet the shortfall of tickets before the screening date.. In the event of a resulting negative balance the shortfall shall be highlighted in reports and deducted from the overall Fees payable to the Licensor.
  1. PUBLICITY & ADVERTISING [P&A]
    FanForce, at its discretion, can advertise and promote the Film/s to its audiences via social media, email, broadcast, newsletters or any other channel, platform or medium.
    FanForce makes no commitment to providing any promotional services outside of any separate agreements with other companies in the FanForce Group.
    Any promotional services required shall be determined by FanForce providing a P&A budget to the Licensor. Upon the Licensor approving that P&A budget, FanForce shall be entitled to charge the Licensor for the agreed P&A costs and recoup these costs from the Fees payable to the Licensor.
  1. ADVERTISING
    FanForce reserves the right to engage with advertisers for the promotion of goods and services (including Film/s) across all platforms, events, mediums and promotional campaigns 
  1. ACCOUNTING
    FanForce shall keep true, complete and accurate books and records from the Screening. FanForce will report to the Licensor no later than sixty (60) days after the first public FanForce screening. From there reporting shall be as follows, except in the case that there is no receipts derived from the Film/s:
    (a) At the end of each month for the first 6 months;
    (b) The end of each calendar quarter for the next 6 months; and
    (b) Half yearly thereafter for the rest of the Term.
    Payment of Fees due to the Licensor will be made after receipt of an appropriate invoice from the Licensor. 
  1. PRIVACY
    All data, terms, costs and agreements with 3rd parties including but not limited to suppliers, cinemas, venues, ticket holders and Hosts shall remain the sole property and confidential information of FanForce and shall not be disclosed at any time.
  1. MATERIALS AVAILABLE TO FANFORCE
    The Licensor will provide FanForce with all Film/s Delivery Materials in its possession, including all Marketing Materials, and any and all similar or related advertising or promotional materials possessed by the Licensor. The Licensor will provide FanForce with a list of all such Delivery Materials and Marketing Materials currently in its possession or being prepared within thirty (30) days from the date thereof, and shall provide all Delivery Materials to FanForce on the Delivery Date in the Deal Terms.
    If the Licensor has a promotional website for the Film(s) the Licensor shall provide direct links to the FanForce website for users to book screenings of the Film including the FanForce API [Application Programming Interface]
  1. LICENSOR’S WARRANTIES
    The Licensor warrants and represents to FanForce, its successors, licensees and assigns, that: (a) it has the rights, power and authority to grant the Rights Licensed herein granted to FanForce; (b) neither the Film/s, nor any part thereof, nor any materials contained therein or synchronized therewith, nor the title thereof, nor Marketing Materials, nor the exercise or any right, license or privilege herein granted, violates or will violate or infringes or will infringe any trademark (whether common law or statutory), trade name, contract, agreement, copyright, patent, literary, artistic, dramatic, musical, performers, personal, private, civil or property right or right of privacy or “moral rights of author” or any other right whatsoever of any person, entity, firm, corporation or association whatsoever. 
  1. RIGHT TO ASSIGN
    Any assignment by the Licensor of its rights, duties and obligations hereunder, including the Rights Licensed, whether voluntary or involuntary, or by operation of law, shall be subject to the rights of FanForce hereunder, and shall not operate to relieve or discharge the Licensor of any of its duties or obligations or deprive FanForce of any of its rights. FanForce may assign or transfer any or all of its rights herein to any person, firm or corporation which assumes FanForce’s obligations herein in writing. 
  2. REMEDIES FOR BREACH
    If either party materially breaches any of the terms and provisions of this agreement on its part to be performed, whether such breach pertains to a default in payment or otherwise, the non-breaching party shall:
    (a) give the breaching party a period of thirty (30) days within which to remedy the breach.
    (b) If the breaching party fails duly to remedy the same, then upon expiration of the thirty (30) days, the non-breaching party shall be entitled on written notice to the breaching party to terminate this agreement and the license herein granted shall in all respects cease and terminate, and the breaching party shall have no further rights hereunder.
    (c) Notwithstanding such termination, the non-breaching party’s rights arising out of this agreement or in connection therewith or existing prior thereto shall nevertheless continue in full force and effect, including the non-breaching party’s rights to institute a proceeding for damages caused to it by the breaching party’s breach.
  1. ARBITRATION
    Any disputes or controversies arising under this Agreement shall be submitted to binding arbitration at Sydney, in accordance with the rules and guidelines of the Australian Disputes Centre (ADC).
  1. INDEMNITY
    The Licensor does hereby and shall at all times indemnify and hold harmless FanForce, its officers, directors and employees, promoters, exhibitors, contractors, licensees and assignees, of and from any and all charges, claims, damages, costs, judgments, decrees, losses, expenses (including reasonable attorneys’ fees), penalties, demands, liabilities and causes of action of any kind or nature whatsoever by reason of, based upon, relating to, or arising out of a breach or failure of any of the covenants, agreements, representations or warranties it has made hereunder or by reason of any claims, actions or proceedings asserted or instituted, relating to or arising out of any such breach or failure or conduct or activity resulting in a breach or claim of breach. All rights and remedies shall be cumulative and shall not interfere with or prevent the exercise of any other right or remedy which may be available. 
  1. NO JOINT VENTURE
    Nothing herein contained shall be construed to constitute the parties joint venturers, or partners, nor shall any similar relationship be deemed to exist between them.
  1. NOTICES
    Whenever notices are required to be given under this agreement, the writings signed by an officer of the party servicing such notice, and mailed by registered mail, return receipt requested, to the other party, shall be deemed good and sufficient notice. Such notices shall be addressed to the parties at the addresses listed in this Agreement. 
  1. GOVERNING LAW
    This Agreement shall be construed under and governed by the laws of New South Wales, Australia and the parties irrevocably submit to the exclusive jurisdiction of the Courts in New South Wales.
  1. INTERPRETATION
    In the interpretation of this Agreement unless the context otherwise requires:
    (a) Words importing the singular shall include the plural and vice versa;
    (b) Words importing one gender shall include the other genders;
    (c) Expressions are used as in the Copyright Act 1968 (Cth);
    (d) All sums are payable as and in Australian dollars ;
    (e) All Exhibits and Schedules form part of this Agreement;
    (f) Clause headings shall be disregarded;
    (g) All warranties shall during the term of this Agreement have the force and effect of conditions;
    (h) All warranties survive completion of this Agreement.
  1. SEVERABILITY
    The intention of the parties is to create a valid binding agreement.  If this Agreement shall be rendered invalid at any time by any one or more of the provisions of this Agreement contravening any statute, regulation, by-law, ordinance or otherwise contravening or offending any provision of law or equity, any such provision shall to the necessary extent be read down or excised from this Agreement and shall not affect the validity or effectiveness of the remainder.
  1. FORMER AGREEMENTS
    This Agreement, including the Deal Terms, Schedules and Attachments attached hereto, contains the complete understanding and agreement between the parties with respect to the within subject matter, and supersedes any former agreements between the parties in respect of the within subject matter and may not be modified or amended except by written instrument executed by all of the parties hereto.
  1. CONFIDENTIALITY
    Each party shall keep confidential the terms of this Agreement, except for disclosing it to their professional advisers (and then only under obligation of confidence) or as required by law.
  1. GOODS AND SERVICES TAX
    If goods and services tax (“GST”) is payable in respect of payments of Fees made by FanForce to the Licensor under this Agreement, the Fees payable will be increased by the amount of GST, provided that:
    (a) the Licensor is registered for purposes of GST, and the Licensor provides to FanForce a valid tax invoice in accordance with A New Tax System (Goods and Services Tax) Act, 1999 including Regulations Amendments and related Acts.
  1. TICKETING & PRICING
    All ticketing, pricing, negotiation and final arrangements with all 3rd party suppliers, partners, sub-licensors and all other entities shall be negotiated and managed by FanForce exclusively.
    The Licensor may not use external ticketing providers unless otherwise agreed between the parties in writing.
    All Complimentary tickets and discounted tickets shall be deducted from Fees payable to the Licensor.
  1. DISTRIBUTION ADVANCE
    The “Distribution Advance” may be paid to the Licensor ex-GST in accordance with the Deal Terms. It may be paid on delivery and acceptance of the Delivery Materials and subject to payment of any amounts due by the Licensor to FanForce and the FanForce Group of companies and can take a number of  forms:
    (a) Recoupable: 100% of the fee is recouped from the Fees payable to the Licensor until repaid in full;
    (b) Partially Recoupable: A percentage of the fee is recouped from the Fees payable to the Licensor until paid in full;
    (c) Non-Recoupable: The fee is not recouped from the Fees payable to the Licensor.
    The Licensor should seek its own financial and tax advice in relation to the GST payable on the Distribution Advance. FanForce assumes no responsibility for the financial declaration of the Distribution Advance.
  1. VENUES
    The Licensor, its employees, contractors, agents or affiliates shall not attempt to contact any venue, cinema or supplier associated with FanForce regarding the Film/s Screenings or events unless otherwise agreed in writing by the parties or unless the Licensor is Distributing the film.
  1. RATINGS, CLASSIFICATIONS & SUBTITLES
    Unless otherwise arranged between the parties in writing, the Licensor is responsible for obtaining the rating, classification and subtitles for the Films in the Territory.
  1. STREAMING & FESTIVALS
    The Licensor acknowledges that FanForce provides Event, Streaming and Festival services to third parties in a fee-for-service arrangement. The fees paid to FanForce for these services are distinct from revenue derived from distribution of the Film/s even though the Film/s may appear in the festival FanForce is assisting to provide.
  1. FUNDRAISING
    The Licensor takes full responsibility for any Fundraising activities taking place as part of the release of their Film/s and shall comply with all fundraising laws in the Territory. The Licensor acknowledges that all fundraising activities taking place on the FanForce platforms are outlined in the FanForce operating T&Cs detailed at https://fan-force.com/terms-of-service.
  1. AUSTRALIAN EMBASSY SCREENINGS
    Where Government and Education Rights are included in the Deal Terms, the Licensor acknowledges it is aware that the Australian Government may conduct these screenings at an overseas Australian Embassy, in an external venue or virtually. The Licensor warrants it has the rights to grant the Government rights in the Film/s to FanForce and does hereby and shall at all times indemnify and hold harmless FanForce, its officers, directors and employees, promoters, contractors, exhibitors, licensees and assignees, of and from any and all charges, claims, damages, costs, judgments, decrees, losses, expenses (including reasonable attorneys’ fees), penalties, demands, liabilities and causes of action of any kind or nature whatsoever by reason of, based upon, relation to, or arising out of a claim relating to Government Screenings.
  1. SPECIAL CONDITIONS
    The Special Conditions specified in the Deal Terms shall take precedence where they conflict with any of these Terms of Trade..
  1. PIRACY
    FanForce takes piracy and privacy very seriously, however whilst reasonable and adequate security measure are made by FanForce to contain passwords, links and to prevent the Film/s from being pirated, it shall not to be held liable for copies and access to the Film/s beyond FanForce’s control. 
  2. DEFINITIONS 
  1. The terms “we”, “us”, “our” and “FanForce” mean FanForce.
  1. “Account Holder” means all individuals and/or entities who create and manage an account through the FanForce Websites (“Site”).
  1. “ANZ” means the Territory of “Australia and New Zealand” defined as follows: The Exclusive Territory of “Australia and New Zealand” shall be Australia including the following islands and territories and their territorial waters and territories and possessions (including without limitation all government installations, armed forces installations, embassies, oil wells, oil rigs or marine rigs): Admiralty Islands, Ashmore Islands; Christmas Islands, Nauru; New Britain; New Caledonia; New Hebrides; New Ireland; Norfolk Island; Papua New Guinea; Solomon Islands (including Bougainville); Vanuatu; and New Zealand and the following islands and territories: Cook Islands; Fiji; Fijian Islands; Kiribati (formerly the Gilbert Islands); Phoenix Islands; Rarotonga; Samoan Islands (excluding American Samoa); Tokelau Islands; Tuvalu (formerly Ellice Island); Tonga
  1. “Cinema-On-Demand” means a model of screening films, regardless of location, whereby the financial risk of Screenings is mitigated by a “Tipping Point”
  1. “Cinematic” means the following rights: Theatrical, Film Festivals, Public Video, Cinema-on-Demand, Community Screenings, Virtual Events and Virtual Festivals.
  1. “Community Screening” means a Non-Theatrical Screening where a licence fee may or may not be charged to screen Film/s. This can be for either ticketed or non-ticked events.
  2. “Costs” shall mean FanForce’s and its sublicensee’s expenses in connection with the permitted exploitation of the Licensed Rights in the Film/s. This will mean all costs and expenses incurred in connection with the screening, distribution, advertising, and exploitation  of the Film/s including but not limited to, all costs with respect to Audio Visual hire, delivery fees, booking fees, uploading fees, advertising, materials, duties and taxes imposed by any governmental authority, censorship costs, subtitling, dubbing, preparing and editing the picture for distribution in the Territory.
  1. “DCP” means a Digital Cinema Package which is a collection of digital files used to store and convey digital cinema audio, image, and data streams.
  1. “Distribution Expenses” means FanForce’s and its sublicensee’s actual, direct, out-of-pocket deductible arm’s-length distribution expenses in connection with the permitted exploitation of the Licensed Rights in the Film/s. This will mean all costs and expenses incurred in connection with the distribution, advertising, and exploitation  of the Film/s including without limitation, all costs with respect to the following: replication costs, costs to create a master, trailers, advertising, materials, duties and taxes imposed by any governmental authority, censorship costs, subtitling, dubbing, preparing and editing the picture for distribution in the Territory.
  1. “Download to Rent” (DTR) means means the right to exploit the Program for rent by any licensed means where users are permitted to download, make and store electronic reproductions of the Program for a limited period for private use only.
  1. “Educational” means screenings of the Film/s in any format organised with educational groups such as schools, universities or private colleges. 
  1. The term the “FanForce Group” means the following companies: FanForce Films Pty Ltd [ABN: 66613364462], The Pitcher House Pty Ltd [ACN: 635 934 986], FanForce Productions Pty Ltd [ABN 14 628 666 419] as well as the websites Fan-Force.com and FanForceTV.com trading under FanForce Films Pty Ltd.
  1. ‘Fees Paid to the Licensor’ means the revenue derived from the exploitation of the Film/s in line with the terms listed in the Deal Terms.
  1. “Government screening” means screenings of the Film/s in any format organised with or by any local, state, province, federal or national government entity or organisation such as embassies, installations or departments. 
  1. “Holdback” means the period of time FanForce holds exclusivity in the Right Licensed or region against other and all other rights not held by FanForce or shared with FanForce in the territory. FanForce reserves the right to change the holdback period at its discretion. The Holdback period shall begin from the date FanForce first exploits the applicable Right Licensed in the territory.
  1. “Host” means all individuals and/or entities who register an account with the Site for the purposes of creating and managing a Screening on the Site.
  1. “IPTV” (Internet Protocol Television) means multimedia services such as television/video/audio/text/graphics/data delivered over Internet Protocol based networks. 
  1. “Non-Theatrical” means a screening, distribution and exhibition of the Film/s in a linear form in institutions or organisations not primarily engaged in the business of exhibiting pictures to the public, including, but not limited to, Educational, social and religious institutions, churches, businesses, hospitals, libraries, shut-ins, prisons, convents, orphanages, oil rigs and oil fields, or by and at the facilities of governmental bodies and armed services flying the flag of countries in the Territory such as embassies, military bases and military vessels flying the flag of countries in the Territory but specifically excludes all Educational institutions. 
  1. “Promotional Rights” means the right.
  1. “Public Video” means exploitation of a Motion Film/s embodied in a Videogram only for direct exhibition before an audience in a “mini-theater”, an “MTV theater” or like establishment that charges an admission to use the viewing facility or to view the Videogram and that is not licensed as a traditional motion picture theater in the place where the viewing occurs.
  1. “Release” means any screening in a Territory where a fee has been paid by a third party to screen Film/s in any of the Rights Licensed in the Deal Terms. 
  1. “Screening” means a specialised screening of the Film/s on the FanForce Website or at specified venues as listed on the Site which are organised by Hosts or FanForce. 
  1. “Ticketholder” means all individuals and/or entities who register an account with the Site for the purposes of either viewing the Film/s or  purchasing a ticket to a Screening through the Site.
  1. “Theatrical” means exploitation of the Film/s only for direct exhibition in conventional theaters, licensed as such in the place where the exhibition occurs, that are open to the general public on a regularly scheduled basis and that charge an admission fee to view the Film/s.
  1. “Tipping Point” means the minimum number of tickets required to be booked by a nominated date before a Screening may proceed. FanForce, at its sole discretion, sets the Tipping Point, minimum number of ticket purchases, ticket prices and the nominated date for a Screening to proceed. Tipping points can vary due to factors such as event dates, times, venues, locations, equipment required.
  1. “TVOD” means Transactional Video on Demand or ‘pay-per-view’ where a user makes a payment for particular choice of video or small combination of videos via an internet or online connection. 
  1. “User” means all individuals and/or entities accessing the FanForce Sites for any reason, including both Hosts and Ticketholders.
  1. “Virtual Event” means a time-based, linear, streamed Screening of the Film/s which may or may not include an attached live or pre-recorded interview, Q&A or other video via an internet or online connection which is Hosted by a person or entity. These can include screenings where a user makes a payment for access as well as free screenings.
  1. ‘Virtual Festival’ refers to the screening of the Film/s with an attached live or pre-recorded interview, Q&A or other video via an internet or online connection as part of a collection of films where a user makes a payment for access. Payment includes both ‘All Access’ tickets and individual tickets. ‘Virtual Festivals’ are promoted as collections and revenue is calculated on a percentage of total income of All Access tickets plus individual tickets.
  1. “Virtual Print Fee” (VPF) means a subsidy paid by a film distributor towards the purchase of digital cinema projection equipment for use by a film exhibitor in the presentation of films.
  1. “VOD” or “Video on Demand means a class of online or digital screenings including TVOD [Transactional Video on Demand], SVOD [Subscription Video on Demand], AVOD [Advertising-Supported Video on Demand] or PVOD [Premium-Priced Video on Demand]. A user may or may not pay to use one of these VOD systems.