EQUIPMENT LOAN AND SERVICES AGREEMENT

Transcription

1 EQUIPMENT LOAN AND SERVICES AGREEMENT This EQUIPMENT LOAN AGREEMENT (this Agreement ) is made and entered into as of the first date of the Term specified below (the Effective Date ) by and between Sony Pictures Technologies Inc. ( SPTech ) and [INSERT LEGAL NAME] ( Customer ) and relates to the loan of certain equipment specified on Schedule 1 hereto (the Equipment, which term shall include any associated documentation and software, if any, specified on Schedule 1), and certain training and support services related to the Equipment specified on Schedule 2 hereto (the Services ), all for use on shoots three episodes of the production entitled [INSERT THE NAME OF THE PRODUCTION, AND, IF APPLICABLE, THE EPISODE NAMES] [IF APPLICABLE, INCLUDE LOCATIONS THAT USE IS LIMITED TO: at the following locations only: [INSERT LOCATION(S)] Little Crackers ] (the Customer Production ). 1. Loan of Equipment; Exclusivity. SPTech hereby lends the Equipment to Customer and its affiliates for the Term and subject to the terms and conditions set forth herein. In consideration for such loan, Customer agrees that all of the 3D episodes of the Customer Production shall be shot using only the Equipment and/or other cameras manufactured by Sony Corporation or its subsidiaries except in circumstances where a shot requires a specialized camera for which there is not an equivalent Sony product.. 2. Software License. In the event that the Equipment includes any software or documentation, SPTech hereby grants to Customer and its affiliates a non-exclusive license to use such software or documentation in connection with the operation of the Equipment for the Term. 3. Scope of Use. Under this agreement, Customer may only use the loaned equipment in the production of the Customer Production. Any other uses of the Equipment must be approved in writing by SPTech. 4. Term of Loan. The term of this Agreement shall commence upon [INSERT START DATE] and shall continue until [INSERT END DATE] (the Term ). 5. Title. (a) (b) (c) Title to the Equipment shall remain solely in the name of SPTech or its affiliates, as applicable. Customer shall not sublease, sell, mortgage, grant security interests in, or otherwise encumber the Equipment. Upon any expiration or earlier termination of this Agreement, Customer shall assume responsibility for handling and shipping the Equipment to arrive at SPTech s location no later than close of business on [INSERT DATE] so as to minimize disruption to SPTech s operations. The Equipment shall be turned over to SPTech in the same condition as delivered to Customer, normal wear and tear excepted. For the avoidance of doubt, time is of the essence as to Customer s obligations in this Section 5(c), and Customer s failure to meet such obligations shall be a material breach of this Agreement. 6. Services. SPTech shall provide the Services, and is not required to provide any additional services or support. 7. Delivery and Risk of Loss. (a) (b) (c) SPTech shall ship equipment to Customer s or a designated location. Customer shall bear all risk of loss or damage to the Equipment while the Equipment is in Customer s possession or while being transported to or from Customer (which shall, for the avoidance of doubt, include handling) and at all other times and shall hold SPTech harmless from any such damage or loss. Customer will procure and maintain at Customer s cost and own expense the following insurance policies: 1

2 (d) (i) All Risk Property insurance for the physical loss or damage to the Equipment including loss of use for 100% repair or replacement cost value when the Equipment is in Customer s care, custody and control and until the Equipment is returned, inspected for damages and signed off on by SPTech. Customer s Property Insurance policies will be endorsed to include SPTech, SPTech s parent(s), subsidiaries, licensees, successors, related and affiliated companies, and their officers, directors, employees, agents, representatives & assigns (the Affiliated Companies ) as Loss Payees. (ii) Commercial General (or Public) Liability Insurance including Contractual and Products/Completed Operations in limits of no less than $3,000,000 per occurrence and $3,000,000 in the aggregate. The Customer s Commercial General (or Public) Liability policy will be endorsed to include the Affiliated Companies as additional insureds. (iii) An Umbrella or following Form Excess Liability policy is acceptable to achieve the total liability limits. (iv) Customer will be responsible for any and all deductibles and/or self-insured retentions under its insurance policies; Customer s policies will have worldwide coverage and be endorsed to have a thirty (30) days prior written notice of cancellation and non-renewal. Customer s liability policy(ies) will include a severability of interest clause and an endorsement stating that the Customer s policies are primary and any insurance maintained by the Owner is non-contributory. Customer s insurance companies will be licensed to do business in the state(s) and/or country(ies) where its business operations are located and will have an A.M. Best Guide rating of A:VII; in the event that Customer s insurer(s) is(are) based outside of the United States, Customer s insurance policy coverage territory must include the United States written on a primary basis and provide SPTech with a right to bring claims against Customer s polices in the United States. (v) Before Customer takes possession of any Equipment under this Agreement, a certificate of insurance and the specified endorsements required in this section will be delivered to SPTech and approved by the SPTech s Risk Management Department. All certificates and endorsements will be signed by an authorized representative of insurance company(ies) or the insurance company underwriter. CUSTOMER HEREBY WAIVES ALL CLAIMS IT MAY HAVE AGAINST SPTECH ARISING FROM THE LOAN OF EQUIPMENT, THE PROVISION OF SERVICES, OR THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY HERETO BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE, OR FOR EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF APPRISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. 8. Charges and Taxes. The loan of the Equipment and provision of Services shall be provided to Customer by SPTech in consideration for the grant from Customer to SPTech of the license to use, copy and display Excerpts of the Customer Program set out in Section 12(b). Customer shall pay all costs of receiving, removing and returning the Equipment. 9. No Warranty. TO THE MAXIMUM EXTENT ALLOWED BY LAW, SPTECH MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE EQUIPMENT OR SERVICES. SPTECH SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTIBILITY AND NON INFRINGEMENT AND DOES NOT WARRANT THE QUALITY, PERFORMANCE, ACCURACY, BEHAVIOR, COMPATIBILITY, RELIABILITY OR USE OF THE EQUIPMENT OR SERVICES. FURTHER, THE EQUIPMENT IS PROVIDED AS IS WITH ALL FLAWS. 10. Indemnity. Customer shall defend, indemnify and hold harmless SPTech and its affiliates and their respective directors, officers, employees and agents (collectively, the SPTech Indemnitees ) from and against any and all third party claims, actions, proceedings, losses and liability (collectively, Losses ) based on or related to any use of the Equipment or any portion thereof by, or on behalf of, Customer, or any claim that the Customer Production contains defamatory material, or infringes on any third party patent, copyright, trademark, trade secret or other intellectual property right, or any other claim including but not limited to Losses for property 2

3 damage and personal injury. Customer shall indemnify and hold harmless the SPTech Indemnitees from and against all costs, expenses, settlements and judgments as a result of the foregoing, including any reasonable attorneys fees. 11. Confidentiality; Publicity; Equipment Credit. Subject always to Section 12(b) herein: (a) Each Receiving Party agrees that it will (i) maintain all Confidential Information (as defined below) which is disclosed to or otherwise observed by it in strict confidence and take all reasonable precautions to protect such Confidential Information, (ii) not divulge any Confidential Information to any third party, and (iii) not make or authorize any use of any Confidential Information other than for the performance of this Agreement, except with the prior written consent of the Disclosing Party or as required by law. All rights in and title to the Confidential Information remain in the Disclosing Company. For purposes hereof, Confidential Information means all information disclosed through any means of communication or by personal observation by or on behalf of the party disclosing such information (the Disclosing Party ) to or for the benefit of the party that receives such information (the Receiving Party ) that relates to the Disclosing Party s products, projects, productions, research and development, intellectual properties, trade secrets, technical know-how, policies or practices (and all creative, business and technical information relating thereto), and any other matter that the Receiving Party is advised or has reason to know is the confidential, trade secret or proprietary information of the Disclosing Party. Confidential Information does not include data, materials or information that is available to the general public without breach of any obligation of confidentiality. [Internal Note: Do we want to/can we differentiate between information which is by its nature confidential (and identified as such) on the one hand, and on the other hand, the technical know-how with which we are skilling-up Sky s team and want them to be able to use in an unfettered manner?] (b) Neither party s name, logo, insignia, photographs or any other publicity pertaining to this Agreement, including but not limited to the existence of this Agreement, shall be used in any magazine, press release, trade paper, newspaper or other medium, or otherwise disclosed to any person, without the prior written consent of the other party. Notwithstanding the foregoing, Customer shall include shot on Sony cameras in the credits of the Customer Production. Any casual or inadvertent failure by Customer to comply with the foregoing credit provision shall not be deemed a breach of this Agreement, provided that Customer shall, in the event of any such failure, take all commercially reasonable steps necessary to prospectively cure the same upon its receipt of written notice thereof. 12. Intellectual Property Rights. (a) All rights in and title to any materials furnished by SPTech or obtained by Customer in connection with this Agreement including, without limitation, the Equipment and Services will remain the exclusive property of SPTech. (b) All rights in and title to the Customer Program shall remain in, and be the exclusive property of, Customer; provided, however that [SPTech and Sony Corporation] shall have a perpetual, irrevocable, non-transferable, non-exclusive, paid up right and license to use, copy and display Excerpts [, subsequent to the commercial premiere of the Customer Program,] for informational and promotional purposes, including but not limited to trade show demonstrations. Excerpts means one or more sections of the Customer Program that is no longer than [INSERT NUMBER] consecutive minutes of the Customer Program in length. 13. General. (a) Governing Law; Disputes. The validity, construction, and performance of this Agreement shall be governed by the internal laws of the State of California without regard to the choice of law principles thereof. Any controversy or claim arising out of or relating to this Agreement, its enforcement, arbitrability or interpretation shall be submitted to final and 3

4 (b) (c) (d) (e) (f) (g) binding arbitration, to be held in Los Angeles County, California, before a single arbitrator who shall be a retired judge, in accordance with California Code of Civil Procedure 1280 et seq. The arbitrator shall be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by JAMS. The arbitration shall be a confidential proceeding, closed to the general public. The arbitrator shall issue a written opinion stating the essential findings and conclusions upon which the arbitrator s award is based. The parties will share equally in payment of the arbitrator s fees and arbitration expenses and any other costs unique to the arbitration hearing (recognizing that each side bears its own deposition, witness, expert and attorneys fees and other expenses to the same extent as if the matter were being heard in court). Notwithstanding anything to the contrary herein, Customer hereby irrevocably waives any right or remedy to seek and/or obtain injunctive or other equitable relief or any order with respect to, and/or to enjoin or restrain or otherwise impair in any manner, the production, distribution, exhibition or other exploitation of any motion picture, production or project related to SPTech, its parents, subsidiaries and affiliates, or the use, publication or dissemination of any advertising in connection with such motion picture, production or project. No Further Obligations. This Agreement does not impose any obligation on Customer with regard to the Equipment, including but not limited to any good faith obligation to negotiate any future purchase, lease or license of the Equipment, other than those obligations expressly set forth herein. Independent Contractor. It is expressly understood and agreed that SPTech is an independent contractor. Nothing contained in this Agreement shall be deemed to create an agency or employment relationship between SPTech and Customer. Neither party shall (i) hold itself out contrary to the terms of this engagement; (ii) enter into any agreement on behalf of the other party or bind the other party in any way; or (iii) make any representation or act contrary to the terms hereof. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which taken together shall be but a single instrument. Complete Agreement; Modifications. This Agreement constitutes the entire and final understanding of the parties with respect to the subject matters addressed herein. It is intended by the parties as a complete and exclusive statement of the terms of their agreement. It supersedes and replaces all prior negotiations and all agreements, proposed or otherwise, whether written or oral, concerning the subject matters addressed herein. Any representation, promise or agreement not specifically included in this Agreement shall not be binding upon or enforceable against either party. This is a fully integrated agreement. Assignment. This Agreement is personal to Customer and Customer may not assign its rights or delegate any of its duties or obligations hereunder. SPTech may assign this Agreement or any of SPTech's interests herein (a) to any entity which is a party to a merger or consolidation with SPTech, (b) to any entity acquiring all or substantially all of the assets of SPTech, or (c) to any affiliate of SPTech. All notices, requests, demands and other communications under this Agreement shall be in writing, shall be effective upon receipt, and shall be personally delivered, mailed (by registered or certified mail, postage prepaid and return receipt requested), sent by reputable overnight delivery service, or sent by telecopy to the addresses of the parties provided in the signature block below, and in the case of SPTech, with a copy also to ATTN: General Counsel, Sony Pictures Entertainment Inc., West Washington Blvd, Culver City, CA 90232, Fax:

5 Date. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective [Customer] By: (signature) Title: Address: Fax: SONY PICTURES TECHNOLGIES INC. By: Title: Address: West Washington Blvd. Culver City, California Attention: [INSERT PERSON FOR NOTICE] Fax: [INSERT FAX FOR NOTICE] 5

6 (Quantity made available in parentheses) SCHEDULE 1 DESCRIPTION OF EQUIPMENT 6

7 SCHEDULE 2 DESCRIPTION OF SERVICES [Describe Services, including list any personnel providing the Services] 7