Digi60 Spring 2019 Filmmaker Agreement
**Please note: This agreement has been condensed and modified based on past Digi60 agreements. Thank you to Byron Pascoe of Edwards PC, Creative Law for categorizing and vetting this agreement to be industry standard and acceptable.
Digi60 2019 Filmmaker Agreement (the “Agreement”)
WHEREAS, the Digi60 Filmmakers' Festivals Incorporated (“Digi60”) has developed a series of festivals to promote Ottawa area filmmakers, actors, writers and production crews, by providing an opportunity for film producers to produce short digital videos based on specific terms and conditions as outlined during the Festival launch, Filmmaker Checklist, and detailed herein;
AND WHEREAS, the undersigned (the “Producer”) has agreed to participate in Digi60’s festival (the “Digi60 Festival”) by producing a short digital film (the “Short”) under the terms and conditions of this Agreement and the Filmmaker Checklist;
AND WHEREAS, the Producer grants Digi60 the rights to a "first exhibition" of the Short on a date suitable to the Digi60 organizers;
NOW THEREFORE, in consideration of the following rights and obligations and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows:
Participation in the Festival
1. The Producer agrees to participate in Digi60 by producing a Short of the required duration as set out by Digi60 in the Filmmaker Checklist.
Grant of Rights
2. The Producer grants Digi60 the exclusive "first exhibition" of the short digital video in a suitable venue as determined by the festival organizers.
3. Copyright of the Short is retained by the Producer.
4. The Producer shall deliver a mastered and edited copy (the “Exhibition Version”) of the Short, containing music, sound effects and dialogue in English (and with English subtitles if the Short is in a language other than English), to Digi60 by the deadline in the Filmmaker Checklist, free of defects and of a technical quality which is customary and required for the exercise of the rights of use provided herein.
5. The Producer agrees to provide, at no cost to Digi60, any video promotional trailer material to be used by Digi60 in its sole and absolute discretion.
6. The Producer agrees to provide behind the scenes and other promotional photographs as per the Filmmaker Checklist.
7. The Producer grants the Festival the right to duplicate a reasonable amount of footage from the Short for promotional purposes. These short excerpts or clips may be used by Digi60 in any and all media to promote the Festival.
8. Digi60 will not remove any credit or copyright notice in the Short.
Name and Likeness
9. Digi60 may use and display Producer’s name, likeness, and biography, for advertising the Short and Festival, in perpetuity, throughout the world and in all media, whether now known or hereafter devised, and Producer confirms that such rights are extended to all contributors to the Short, including but not limited to all actors and key production crew.
10. The Producer hereby warrants and represents:
a) All material provided by Producer to Digi60 (other than materials specifically furnished by Digi60 for use by Producer) (i) shall be wholly original with Producer or in the public domain, (ii) shall not infringe upon or violate any copyright or trademark, and (iii) shall not constitute defamation of, or infringe upon or violate the right of privacy of any common law rights or other rights of any party;
b) Producer is free to enter into this Agreement and has the necessary power, capacity and authority to, and is not under any obligation or disability, created by law or otherwise, which in any manner or to any extent prevents or restricts Producer from, entering into this Agreement and fully and freely performing all of Producer’s obligations herein and to provide the grants of rights contained in this Agreement;
c) Producer has not done any act which might, has or will impair the rights conveyed herein;
d) There is no pending litigation, action, claim, lien or encumbrance pending or threatened in relation to the material provided by Producer to Digi60;
e) Producer has obtained all rights to all intellectual property from all other people who contributed to the Short including not limited to all actors, writers and musicians (including but not limited to the master recording and synchronization rights necessary) to lawfully grant Digi60 the rights set out in this Agreement. Producer hereby irrevocably indemnifies and holds Digi60 harmless from any and all expense and liability with respect to such warranty;
f) That they will not bring or consent to others bringing claim or action against Digi60 on the grounds that anything contained in the Short, or in any advertising and publicity used in connection herewith, is defamatory, violates any other rights whatsoever, including without limitation, rights to privacy and publicity.
11. Digi60 confirms that it has obtained and holds the rights to the "Catch" as incorporated by the Producer into the Short. Digi60 grants all necessary rights to the Catch to the Producer in order that the Producer may enter into this Agreement. Digi60 shall indemnify and hold the Producer harmless from any expense and liability related to such rights.
12. The sole right of Producer as to any breach hereunder by Digi60 shall be the recovery of money damages.
13. Each party agrees to indemnify and hold the other party (and its officer, employees and agents) harmless against all claims, demands, expenses, damages and costs arising out of any breach or violation by the other party, its officers, employees or agents and any of its covenants, warranties or representation made herein. The indemnity shall survive the termination of this Agreement.
Extensions for the Deadline
14. If after agreeing to participate in the Digi60 Festival, the Producer is unable to meet the deadline requirements for the Short, as per the Filmmaker Checklist, the Producer must be in touch with the Digi60 via email at least forty-eight (48) hours in advance of the deadline to discuss options and remedies. Each Producer has varying circumstances. No remedy for one producer shall be construed as the remedy for another.
Withdrawal from the Festival
15. If after agreeing to participate in the Digi60 Festival, the Producer is unable to complete production of the Short during the time frame provided, the Producer will notify Digi60 as soon as possible of the intention to withdraw. The filmmaker fee is non-refundable once the catch is released.
16. If either party shall violate or default in the performance of any term or condition of this Agreement, the other party may, by written notice, to address listed above, specify clearly the nature of the default and if, before the expiry of seven (7) days after giving of such notice, the defaulting party does not, or cannot, remedy the violation or default and give assurance of its intention to comply with this Agreement, the other may, by written notice, terminate the rights of the defaulting party under this Agreement with effect from such a date as the other specifies in the notice. Termination shall not affect any rights of the parties accruing up to the date of such default. Notwithstanding the foregoing, once the Short has been delivered to Digi60, Digi60 may include the Short in the Digi60 Festival.
17. If a dispute occurs relating to this Agreement, or the breach thereof which cannot be amicably settled between Producer and Digi60, the matter in disagreement or dispute shall be referred to an arbitrator if the parties can agree on the choice of such arbitrator. If not, the parties shall each select an arbitrator who shall together select a third arbitrator before the commencement of the arbitration. The arbitrators chosen by the parties shall have fulfilled the terms of their appointment by the selection of the third arbitrator, who shall thereafter act as a single arbitrator. The arbitrator’s ruling binds the parties and is not subject to appeal or judicial review of any kind. If there is any dispute regarding any of the arbitration procedures, the Arbitrations Act (Ontario) shall govern such procedure. Unless otherwise agreed to by the parties, arbitration shall be held in Ottawa, Ontario in the English language. The costs of the arbitrator(s) and facility charge shall be paid by the losing party, as determined by the arbitrator. Pending final resolution of any claim, dispute or action arising under or related to this Agreement the parties shall proceed diligently with performing this Agreement.
18. In the event that any party other than Producer purports to hold or exercise rights in the Short that is inconsistent with those granted to Digi60, the Producer shall, upon request by Digi60, to provide forthwith all documented evidence sufficient to establish its legal claim of title upon which the Producer relies in providing the warranties herein.
19. Digi60 may assign this Agreement or any part hereof, and may sell, assign, transfer, license or otherwise dispose of any or all of the rights granted to Digi60 herein. Producer may not assign its obligations herein.
20. Unless otherwise provided herein, all notices shall be in writing, and shall be sent to the addresses set forth herein or as otherwise provided to Digi60 (subject to changes once the relevant party is notified in writing). Notices shall be given by personal delivery or overnight courier and shall be deemed given on the date delivered, or one (1) business day after a notice is sent by overnight courier.
21. Nothing contained in this Agreement shall be deemed to require Digi60 to exhibit the Short.
22. The terms of this Agreement shall be kept secret and confidential, except that the parties may disclose the terms of this Agreement: (i) to the extent necessary to comply with any law or judicial order; (ii) as part of their normal reporting and review procedures; (iii) to their auditors, counsel, accountants and agents so long as they agree to keep the terms of this Agreement confidential; and (iv) as may be necessary in order to enforce their rights hereunder.
23. If there shall exist any conflict between any provision contained herein and any such law or policy, the latter shall prevail; and the provision or provisions herein affected shall be curtailed, limited or eliminated to the extent (but only to the extent) necessary to remove such conflict; and as so modified this Agreement shall continue in full force and effect.
24. Producer shall duly execute, acknowledge and deliver to Digi60, or cause to be executed, acknowledged and delivered to Digi60, any and all assignments or instruments consistent herewith which Digi60 may deem reasonably necessary to carry out and effectuate the purposes and intent of this Agreement. In the event Producer fails to execute any such instrument after a reasonable opportunity to review and comment, Producer agrees by way of this deed that Digi60 shall be entitled to sign such documents in the name and on behalf of Producer as Producer’s duly authorized attorney.
25. This Agreement and the Filmmaker Checklist shall replace and supersede all previous arrangements, understandings, representations or agreements (written or oral, express or implied) between the parties with respect to the subject matter herein. This Agreement may be modified only by a written instrument duly executed by the parties. No waiver by any party of any default, misrepresentation or breach of warranty or covenant hereunder, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
26. This Agreement shall endure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns, as the case may be.
27. Neither party will be responsible for damages caused by delay or failure to perform under the terms of this Agreement when the delay or failure is due to matters or circumstances beyond the control of the parties including, without limitation, fires, strikes or lockouts, floods, acts of God, war, riots, or other civil insurrections, lawful acts of public authorities, or any delays or defaults caused by common carriers which cannot reasonably be foreseen or provided against.
Digi60 2019 Submission Form
Thank you for participating in the festival!
JOIN US AT THE MAYFAIR THEATRE ON MAY 5TH, 2019 - DOORS AT 12:00PM; SCREENING AT 12:30PM