These Standard Terms will supplement the Development and Production Services Agreement (collectively “Agreement”) between Amazon Seller Services Private Limited (“Amazon”) and the Production Company for the Series.
STANDARD TERMS
1. SERVICES:
A. General: Production Company’s services hereunder will include all development, pre-production, production, and post production services customarily provided by first class production companies when producing productions similar to the Series, including engaging key creative personnel (collectively, “Key Series Personnel” and collectively with other employees and contractors, “Series Personnel”), and ensuring such personnel render services in accordance with the terms hereof, including with respect to Amazon-approved production and delivery schedules, and providing all necessary materials, facilities and equipment (collectively, the “Services”). Time is of essence for the performance of the Production Company’s obligation hereunder.
B. Required Rights: Production Company will deliver the Material (as defined below in Clause 5) to Amazon fully cleared for the distribution, exploitation, advertising (both in and out of context) and promotion of the Series and all elements thereof and all ancillary rights thereto (including merchandising and soundtrack rights) worldwide, in perpetuity, in all media now known or developed later without the requirement of any further payments to be made by Amazon (“Required Rights”). Production Company shall produce and deliver additional ancillary content as may be required by Amazon and as fully defined in Clause 13.E (“Ancillary Material”).
C. Development and Production Agreements: Production Company agrees that all development and production-related agreements used in connection with the Material will be in form and substance pre-approved by Amazon. Amazon’s approval of production forms, Production Company’s use of forms provided by Amazon, or Amazon’s acceptance of any legal judgment by Production Company, shall not constitute legal advice from Amazon or limit or otherwise affect Production Company’s: (i) representations and warranties pursuant to the Agreement, (ii) indemnification obligations pursuant to the Agreement, and (iii) obligation to conduct an independent legal clearance review and to deliver the Series and all other material and elements in connection with the Series fully clear of any legal liability or encumbrance. Any agreements Production Company enters into with any individual or entity on the Series will be fully assignable (including to Amazon or its designated affiliate). Such agreements will incorporate appropriate language whereby all rights in all works, materials, results, proceeds created by Series Personnel will be assigned to the Production Company in perpetuity for the world in the manner and form as set out in Clause 5 of these Standard Terms.
D. Production Counsel: Amazon will have the right to pre-approve any outside production legal counsel engaged by Production Company. If the Series requires legal services, such services will be deemed included within the Development Fee and Production Fee (collectively “Total Fee”).
E. Compliance Amazon will have the right to approve the pre-production, production and post-production schedules for the Series. Production Company will observe and abide by Amazon’s policies, guidelines and delivery requirements, including the production guidelines and delivery specifications (if any), (collectively, the “Delivery Requirements”), each as incorporated herein by this reference, and Production Company will produce and deliver the Material (as defined below) in accordance with the applicable Development Fee and/or Production Fee, Amazon-approved production schedule(s), Delivery Requirements, and all Amazon policies and practices as Production Company may be notified from time to time.
F. Insurance Requirements:
- Series Insurance: Production Company shall obtain and maintain, at its sole cost, in full force and effect, with a qualified and licensed insurer subject to Amazon’s approval, insurance coverages in the amounts and at the limits customary in the entertainment industry for comparable services and/or projects (provided that any E&O insurance should at a minimum be equivalent to the Total Fee, commencing from the period of Development Services and subsisting for a minimum period of 1 (one) year from initial exhibition of the Series by Amazon). Production Company shall obtain and maintain, Production Package Insurance including but not limited to coverage for cast, film stock, props, sets, and wardrobe, extra expenses, personal accident, and third-party liability, having a minimum limit reasonably satisfactory to cover all out-of-pocket expenses resulting from such loss.
- Additional Insured: Production Company will ensure Amazon and its parent company, related entities, subsidiaries and affiliates are added as additional insured parties on all insurance policies obtained by Production Company in connection with the Series and Development Services in the following form: “Amazon Seller Services Private Limited, Amazon Studios LLC, Amazon Content Services LLC, and their respective parent, affiliates, subsidiaries, assigns, sub-distributors and licensees as now or hereafter may exist and any other related persons or entities as either of them may designate”. Promptly following order of production by Amazon, Production Company will deliver to Amazon appropriate certificates evidencing such coverage and provide no less than 30 days prior written notice to Amazon if coverage is cancelled or materially altered.
G. Delivery Requirements: Delivery of the Series will not be deemed complete unless all elements are delivered in strict compliance with the Delivery Requirements, and Amazon-approved production, post-production and delivery schedule(s). Final payment may be withheld until the Delivery Requirements have been met. Amazon may itself supply any items with respect to which Production Company fails to make a complete and timely delivery and charge the cost of any such items to Production Company. Notwithstanding the foregoing, Amazon will have the right to require Production Company to produce and deliver Ancillary Materials (as defined below) in addition to any such material set forth in the Delivery Requirements. In such event, Amazon will separately pay Production Company for such additional Ancillary Materials in the amount that the Parties agree to in advance in writing.
H. Record Keeping and Audit Rights: Production Company will keep and maintain complete and accurate books and records with respect to development and production of the Series and Production Company’s operations (“Records”) at Production Company’s principal office at all times during production of the Series and for a minimum of 3 years after Amazon’s exhibition of the last Episode produced hereunder, or 3 years after Amazon receives and accepts delivery of such Episode, whichever period is longer. Upon no less than 10 business days’ written notice, Amazon will have the right to examine and audit the Records at Production Company’s then principal place of business, during normal business hours. Amazon will pay the costs of the audit. However, if the audit reveals a discrepancy of more than 5% of the amount in the Report, Production Company will reimburse Amazon for the cost of the audit plus any amount of overpayment made by Amazon to Production Company within 10 business days of submission of the audit report to Production Company. For any audit conducted during or immediately after production of the Series for any Season, Amazon will have the right to hold back 5% of the amount of the applicable Total Fee pending such audit, which will be conducted expeditiously following Amazon’s receipt of the Report and all supporting books, records and documentation.
2. CONTROLS AND APPROVALS:
A. Total Fee: Total Fee will mean the final, “all-in” development and production budget/cost for the applicable Season including all above-the-line and below-the-line fees and costs and all other expenses required to fully complete and deliver the pilot (if ordered) and each Episode of the Series, which will be understood as set forth in the Development and Production Services Agreement as Development Fee and Production Fee, respectively, collectively referred to herein as a “Total Fee”. As used herein, Total Fee shall include agency commissions, bank fees, underage, overages (whether or not approved by Amazon), above-the-line compensation (however characterized), contingencies, deferments, currency fluctuation reserves, fringes, insurance, interest, legal fees, any production services and producer’s fees, settlements, any portion of the Total Fee paid to third parties directly by Amazon (if applicable), the costs of any services furnished to the Episode by Amazon (if any).
B. Access to Production Activities: Amazon and its designees will have unrestricted access to production areas and production offices (including all files therein) at any location during all pre-production, principal photography and post-production periods, including for the creation of any promotional and ancillary materials and for the audit and examination by Amazon or its designees (e.g., Fidelis) of information, records and transactions related to any payments made by Production Company in connection with the Series (e.g., invoices, challans, etc.). For clarity, any such audit and examination may take place on location during production and may include the monitoring and reporting of such information and other materials by Amazon or its designees, and Production Company will fully cooperate with Amazon Company and/or its designees with respect to such activity.
C. Editing: Amazon will have the right to time compress, edit, change, alter and/or add to the Material, in any manner and for any reason including to (i) insert credits or ratings information and disclaimers, as applicable; (ii) conform the Material to Amazon’s standards and practices requirements and/or for foreign exhibition; (iii) comply with applicable law; (iv) resolve or otherwise address a claim that the Material violates or infringes the rights of any third party under any legal theory; and/or (v) subtitle and dub.
D. Advertising, Product Integrations and Trade-outs: Production Company agrees that any controls or approvals afforded to Production Company hereunder will be subject to Amazon’s sole and absolute control over any commercial advertising time reserved in each Episode, product integrations and trade-outs. In addition, Amazon will have the right to retain all revenue, if any, derived from all advertising, marketing, and promotional activities and events relating to the Series, including sponsorships, ad sales, commercial tie-ins and fee spots and product integrations.
E. Additional Personnel: Amazon will have the right, at Amazon’s sole discretion, to add personnel of Amazon’s choosing for any positions including additional producers to the Series as Amazon deems appropriate, (“Amazon Personnel”), which Amazon Personnel, as designated by Amazon, will be engaged by Production Company and embedded into the production at the applicable Amazon-approved location(s) where services are being rendered (such services to be included in the Total Fee). The on-screen credit accorded to Amazon Personnel will be in Amazon’s sole discretion.
F. Safety Personnel; Background Checks: Production Company will be responsible for retaining on-site safety, security and/or medical personnel and conducting background checks, medical evaluations, or psychological evaluations of on-camera participants and Series Personnel, as applicable and as necessary for insurance purposes. At Amazon’s request, Production Company will provide Amazon with access to review such evaluations and tests as may be necessary for compliance and risk assessment purposes, provided, however, that such evaluations will not be included in the Material assigned to or otherwise owned by Amazon pursuant to Clause 5 below. Production Company will take all necessary steps to maintain the privacy of such evaluations, including adequate data security safeguards.
3. PUBLICITY, ADVERTISING & PROMOTIONS
Amazon will have the sole right to submit the Series for inclusion in festivals, competitions, or exhibitions of any kind.
4. CREDIT
Except as otherwise set forth in the Development and Production Services Agreement, Amazon will determine or approve all aspects (e.g., manner, form, size, style, nature, placement, etc.) of all credits (including Production Company’s and any of its employees or contractors) in connection with all Episodes in Amazon’s sole discretion. No casual or inadvertent failure of Amazon or any third party to comply with the credit provisions hereof will constitute a breach of this Agreement. No party will be entitled to receive any on-screen credit on any Episode unless Production Company and such party have actually completed all Services for such Episode and are not in Default.
5. AMAZON RIGHTS
A. Copyright Ownership: The results and proceeds of Production Company’s services hereunder (in whatever stage of creation or completion, including any video tapes, negatives and prints thereof) (and the services of any of Production Company’s employees, officers and directors, and the Series Personnel) (the “Results and Proceeds”), including without limitation all themes, plots, characters, literary works, musical works, artistic works, dramatic works, performances, sound recording, formats, ideas, stories, and all other material composed, whether or not submitted, added, created, or interpolated by Production Company and/or Series Personnel hereunder, which may have been or may be rendered in collaboration with others, and any and all rights granted to Production Company pursuant to releases or other agreements with individuals or entities providing services, including performers, authors of literary, musical, artistic or dramatic works or granting rights in connection with the Series (collectively, together with the Series, Ancillary Materials, and Results and Proceeds, the "Material"), will from the moment of creation constitute “works made for hire” (in the jurisdictions where it is recognized)/commissioned works developed at the instance of Amazon including for use as part of an audio-visual work and/or a supplementary work, in accordance with Section 17 of the Indian Copyright Act, 1957 (as amended, the “Copyright Act”) and Amazon shall be the first and exclusive owner of all rights including but not limited to intellectual property rights and copyright (and renewals and extensions thereof) in the Material and parts thereof for all purposes without reservation, condition or limitation. Amazon, as first and exclusive owner, shall have the sole and exclusive right to exercise all rights comprised in copyright in the Material in accordance with Section 14 of the Copyright Act or any other equivalent provision thereof, including the sole right to register the copyright in the Material in Amazon’s name. All rights granted to Amazon shall remain vested whether or not this Agreement is terminated for any reason. If under applicable law the foregoing is not effective to place authorship and ownership of the Material and all rights therein in Amazon, or if Production Company otherwise retains any interest in the Material or parts thereof, then Production Company hereby irrevocably without any reservation grants, assigns and transfers to Amazon, all rights, title and interest including all rights vested in any form of intellectual property, inter alia, trademarks, copyrights (and all renewals and extensions thereof), with respect to the Material and all parts thereof, exclusively, irrevocably and perpetually, throughout the universe, in any and all media, now known or developed later including in all modes, mediums and formats of exploitation including but not limited to those mentioned in Exhibit A of the Development and Production Services Agreement. In the event under operation of any law, the assignment herein is deemed not to apply to any future mode or medium of the Material or such mode or medium which is not in commercial use/ existence on the execution of this Agreement (“Future Modes”), the Production Company hereby grants an irrevocable and exclusive license in perpetuity to Amazon, its transferees, assignees, and sub-licensees for the territory of the entire universe to exploit the Materials in any Future Modes, for the consideration paid to the Production Company under this Agreement. The Production Company hereby waives any reversionary or reserved rights in the Materials it may have by operation of the laws of India or any other jurisdiction including right under Section 19 (4) read with Section 30 (A) of the Copyright Act.
B. Amazon's Right to Make Changes; Waiver of "Moral Rights": Production Company irrevocably waives, and undertakes to ensure the waiver in contracts with Series Personnel of, the benefits of any provision of law known as "droit moral," or any similar laws, to the extent permissible under applicable laws, and agrees not to institute, support, threaten, propose, maintain or authorize any legal action whatsoever, including a lawsuit on the ground that the Material or parts thereof or Amazon’s exploitation of its rights hereunder in any way constitute an infringement of any of Production Company's "droit moral" (or any similar law in any country of the universe) or a defamation or mutilation of any part thereof, or contain unauthorized variations, alterations, modifications, changes or foreign versions or translations.
C. Rights with Respect to Physical Production Materials: Production Company will not transfer or otherwise dispose of any tangible materials created or acquired solely for use in connection with the Series (e.g., sets and wardrobe) (“Physical Production Materials”), without first obtaining Amazon’s prior written consent. Upon Amazon’s request to Production Company, Production Company will transfer or will make such Physical Production Materials available as, when, and, where requested by Amazon (if other than at Production Company’s facilities, at Amazon’s expense).
D. Trademark Ownership: As between Production Company and Amazon, Amazon will own all trademark and service mark rights in and to any names, titles (including without limitation the Series title and any Episode titles), logos, slogans, taglines (collectively, “Amazon Trademarks”) used in connection with or created for the Series, and will have the exclusive right, but not the obligation, to use and register Amazon Trademarks for any goods and services and in any country or jurisdiction of the world in its sole discretion. Production Company will acquire no right under this Agreement to use, and will not use or permit the use of, the name of Amazon or that of its successors or assigns, or of any telecaster or other exhibitor of the Series or any Episode thereof, or the parent, subsidiary or affiliated or related entities of each of the foregoing (collectively referred to herein as the “Amazon/Exhibitors”), or of Amazon Trademarks or any other fanciful characters or designs, logos or trademarks of Amazon/Exhibitors in any manner or for any purpose without the express, written permission of Amazon/Exhibitors. Production Company will make all Series Personnel aware of, and subject to, these restrictions. Production Company agrees that it will not seek to register Amazon Trademarks or make any use of Amazon Trademarks.
E. Domain Name/Online/Social Media Rights: Amazon will have the exclusive right, but not the obligation, to register and maintain internet domain names, websites and social media pages corresponding to Amazon Trademarks, Series and/or the Material. Production Company agrees that it will not seek to register or maintain any internet domain names, websites or social media pages corresponding to or incorporating Amazon Trademarks, Series or the Material.
F. IP Enforcement: Production Company will cooperate with Amazon in connection with Amazon’s enforcement or defense of any actions or proceedings with respect to the Material, Series and/or Amazon Trademarks. Amazon will have the right to name Production Company as a co-plaintiff.
G. New Rights: Production Company and Amazon acknowledge that new rights to the Material (including Amazon Trademarks in connection therewith) may come into being or be recognized in the future (collectively, “New Exploitation Rights”). Production Company hereby assigns, grants, and conveys to Amazon all right, title, and interest in and to such New Exploitation Rights. Production Company and Amazon acknowledge that new (and/or changed) technologies, uses, media, versions, forms, formats, modes of transmission and methods of distribution, dissemination, exhibition or performance (collectively, “New Exploitation Methods”) continue to be developed in the future, which would offer new opportunities for exploiting such New Exploitation Rights. Production Company hereby assigns, grants, and conveys to Amazon any and all rights in and to such New Exploitation Methods.
H. Rental Rights: Production Company irrevocably assigns to Amazon (or, if any applicable law prohibits or restricts such assignment, hereby grant to Amazon an irrevocable royalty-free perpetual license of) Production Company’s rights, if any, to authorize, prohibit and/or control the renting, lending, fixation, reproduction and/or other exploitation of the Series by any media and means now known or hereafter devised, including, without limitation, any Future Modes
I. Security Interest: Without prejudice to the ownership of Amazon in and to the Materials, as security for the obligations of Production Company to Amazon in connection with the production, delivery and distribution of the Series, Production Company hereby grants and assigns to Amazon, simultaneously herewith, a security interest in all of Production Company’s right, title and interest in and to the Material (collectively, the “Collateral”), as and when created, and all underlying rights therein, elements thereof, and all proceeds related to the foregoing or derived therefrom, in order to secure to Amazon all of Amazon’s rights hereunder, including Amazon’s right to own and exploit the Material, and receive the benefit of Production Company’s full performance of the Agreement. In the event of a Default by Production Company under this Agreement, Amazon may: (i) exercise any and all of the rights and remedies of a secured party under the equivalent of the uniform commercial code in effect in the state or other jurisdiction where enforcement is sought; and/or (ii) take all actions and exercise all rights and powers with respect to the Collateral. Upon Amazon’s provision of notice of Production Company’s Default, Production Company will, at Amazon's request, deliver to Amazon, or to Amazon’s nominee, all elements of the Collateral which are in the possession or under the control of Production Company, and Amazon may seize and take possession of all or any part of the Collateral.
6. CONFIDENTIALITY
Production Company will keep confidential and will not disclose to any third party the following information: the terms of this Agreement; any information relating to the Material; information relating to the business, operations, production methods and programming of Amazon, or any entity related to or affiliated with Amazon, and all other information learned or obtained as a result of Production Company’s participation in the Series; (“Confidential Information”). Without limiting the generality of the above, Production Company is strictly prohibited from disclosing, causing to be disclosed or negligently creating a circumstance such that Confidential Information is improperly disclosed on any social networking site; micro-blogging service, online forum, discussion thread or comment section, personal website or user modified website (e.g., wiki), or any other website, platform, forum, application or form of communication now known or developed later. Production Company will make Series Personnel aware of, and subject to, these restrictions.
7. INCAPACITY, DEFAULT AND FORCE MAJEURE
A. Incapacity: Any of the following will constitute an “Incapacity”: (i) if any principal of Production Company or Key Series Personnel becomes unable to perform any or all of such individual(s)’ obligations in connection with the Material due to physical or mental incapacity, (ii) the indictment and/or conviction for a felony or the use of illegal drugs (“Indictment/Conviction”) by any Key Series Personnel while engaged in any business-related function or if such conduct otherwise adversely affects Production Company’s ability to perform material Services in connection with the Series, or (iii) any Key Series Personnel does any act that brings Production Company, Key Series Personnel, and/or Amazon into public disrepute, scandal, contempt or ridicule or that shocks, insults, or offends a substantial portion or group of the community or reflects unfavorably in a significant way on Production Company, any Key Series Personnel, Amazon, or any licensee, sponsor or advertising agent of the Series (a “Bad Act”).
B. Default: An event of “Default” will be deemed to exist: (i) as a result of a material breach of any of Production Company’s representations, warranties, covenants or obligations under this Agreement; (ii) if Production Company is unable to meet its debts as they come due, attempts to make an assignment for the benefit of creditors, enters into liquidation or dissolution, files a petition in bankruptcy, becomes insolvent, or if a trustee, administrator, liquidator or receiver is appointed for Production Company or a substantial part of Production Company’s assets, whether by voluntary act or otherwise, or if any proceeding is instituted by or against Production Company under the provisions of any bankruptcy law or similar law for the protection of debtors, reorganizing or liquidating debtors or restructuring their debts, which proceeding remains undismissed or undischarged for a period of 60 days, or if Production Company enters into a voluntary arrangement with its creditors or if Production Company's sells all or a substantial portion of its assets or business to another entity, or control of the management and affairs of Production Company is transferred to another entity; (iii) in the event of any negligence or misconduct in connection with the Series committed by Production Company or any of the owners, officers, directors, or employees of Production Company (collectively, “Production Company’s Personnel”); (iv) the Indictment/Conviction of any Production Company’s Personnel while they are engaged in any business-related function or if such conduct otherwise adversely affects Production Company’s ability to perform material Services in connection with the Series; or (v) if Production Company’s Personnel does any Bad Act. With respect to a Default, Production Company will have 48 hours (reducible to 24 hours as required due to production exigencies) after written demand from Amazon to perform as required under this Agreement, only to the extent that such Default is curable and not willful and at no additional cost to Amazon and provided further that the foregoing right to cure shall only be available for the first breach by Production Company of this Agreement.
C. Force Majeure: A “Force Majeure Event” will exist if development or production of the Material is interrupted or materially interfered with due to an earthquake or other natural event, government action, labor dispute, acts of war or terrorism, or any other event beyond the control of Amazon.
8. AMAZON’S REMEDIES
Production Company agrees that Amazon may elect any one or more of the following remedies, as applicable:
A. Suspension: In the event of any Incapacity, Default or a Force Majeure Event, Amazon will be entitled to suspend Production Company’s services hereunder for the duration of such Incapacity, Default or Force Majeure, as applicable. No compensation or fees of any kind will accrue or be payable during any period of suspension, except to the extent Production Company’s right to receive such compensation or payments accrued prior to the effective date of the suspension. At Amazon’s election, Amazon may reduce its order of Episodes affected by such Force Majeure Event, in which case Amazon’s obligations to pay Production Company will be reduced by the number of days or Episodes resulting from such reduced order, provided that, Amazon acknowledges that any such reduced order may result in the incremental increase in episodic production costs for any remaining Episodes of the applicable Season, which the Parties will discuss in good faith. With respect to a Default, Amazon will determine the date on which any such suspension will be lifted and Production Company can resume performing services, at Amazon’s sole discretion. During any period of suspension, the Parties’ rights and obligations under this Agreement will be unaffected, except as expressly provided in this Agreement.
B. Termination for Cause: Amazon will have the right to terminate this Agreement in the event of any of the following: (i) the death of any Key Series Personnel, (ii) any Key Series Personnel is Incapacitated for more than 1 week, (iii) a Force Majeure Event continues for more than 2 consecutive weeks, or (iv) Production Company is in Default. If Amazon terminates this Agreement due to (i), (ii), or (iii) in the preceding sentence, Amazon will pay to Production Company an amount equal to (a) any accrued or vested fees as of the date of such termination, and (b) the amount of any verifiable costs incurred or irrevocably committed by Production Company through the date of termination and/or obligated to be paid by Production Company consistent with the applicable Total Fee (the “Committed Costs”), provided that any amounts already paid by Amazon to Production Company hereunder will be used to offset this obligation and Amazon will pay only the excess remaining unpaid or, if the amounts paid by Amazon to Production Company exceed the amount owing to Production Company pursuant to this Clause, Production Company will repay Amazon the amount of such excess within 15 days after Amazon’s written demand therefor (“True-Up”). If Amazon terminates this Agreement due to (iv) in the first sentence of this Clause 8.B., Amazon will have no obligation to pay Production Company any further amounts or fees whatsoever.
C. Termination without Cause: Amazon will have the right to terminate this Agreement without cause and/or cancel any production order, at any time without cause. If Amazon terminates this Agreement without cause and/or cancels any production order at any time without cause, and Production Company is ready, willing and able to render all Services, then Amazon will pay to Production Company an amount equal to (i) any accrued or vested fees as of the date of such termination, and (ii) the amount of any Committed Costs, subject to True-Up.
D. Takeover: In addition to all other rights and remedies it may have, Amazon will have the right, but not the obligation, to take over and complete production and delivery, at its discretion, of all or any portion of the Series at any time (“Takeover Rights”) following any termination of this Agreement by Amazon. If Amazon elects to exercise its Takeover Rights, it will send Production Company written notice. Upon receipt of such notice, Production Company will follow Amazon’s directions and assist Amazon to effectuate any takeover. Amazon or its designee(s) will assume sole and exclusive control of the Production Account, and all of Production Company’s rights pursuant to agreements and releases respecting Key Series Personnel, Series Personnel (except for full-time employees of Production Company), facilities, equipment (to the extent said facilities and equipment are leased and/or purchased for the Series) and other contracts entered into by or on behalf of Production Company in connection with the Series will be deemed automatically assigned to Amazon or its designee(s) and Amazon or its designee will assume all executory obligations (provided they are reasonable and customary obligations or otherwise were approved by Amazon in accordance with this Agreement and the Total Fee) in connection with the Series. Within 10 business days following Amazon’s exercise of Takeover Rights, Production Company will deliver to Amazon all footage and other Series material not previously delivered to Amazon hereunder, including all original master tapes, electronic media on external hard drives, and all project files, media files and contracts and agreements related to the Series. Should Production Company fail to comply, Amazon may enter Production Company’s premises to take possession of all or any part of the Material, the contracts, releases and all facilities and equipment leased and/or purchased for the Series not delivered by Production Company hereunder. If Amazon elects to exercise its Takeover Rights, then upon demand, Production Company will repay to Amazon any financing advanced by Amazon to Production Company that has not already been expended or committed to the production as authorized by the Total Fee. If said financing is not immediately paid to Amazon, then, at any time thereafter before such repayment, Amazon will have the right to foreclose any lien Amazon may hold and/or any chattel mortgages, assignments or pledges executed at any time by Production Company as authorized by this Agreement.
E. Injunctive Relief: Notwithstanding the foregoing, Production Company agrees: (i) if, as a result of Production Company’s Default, Amazon is required to make any payments, Amazon may either deduct the amount of such payments from compensation due to Production Company or require full reimbursement from Production Company, and (ii) that the Services to be rendered, and rights to be granted, by Production Company under this Agreement are of a special, unique, extraordinary and intellectual character giving them particular value, the loss of which cannot be reasonably or adequately compensated in damages, and that a Default by Production Company of its obligations hereunder would cause Amazon irreparable injury and damage. Accordingly, without limiting or waiving any other rights or remedies of Amazon, Amazon will be entitled to injunctive or other equitable relief to prevent or end any such Default or to end such Default, if commenced.
9. LIMIT ON PRODUCTION COMPANY’S RIGHTS TO INJUNCTIVE RELIEF
Production Company acknowledges that in the event of a breach of any of Amazon’s obligations under this Agreement, damage caused to Production Company thereby is not irreparable or otherwise sufficient to give rise to a right to injunctive or other equitable relief. Production Company agrees that its rights and remedies in the event of any breach of this Agreement by Amazon will be limited to the right, if any, to recover monetary damages in an action at law. Production Company will not be entitled by reason of any such breach and hereby expressly and irrevocably waives its right, in law, contract or equity, to seek or obtain injunctive or other equitable relief or to enjoin or restrain the production, distribution, exhibition, promotion, advertising or exploitation of the Series or any subsidiary, derivative or ancillary rights thereto or any element thereof during or after the termination or expiry of this Agreement.
10. NO OBLIGATION TO EXPLOIT
Amazon will have no obligation to distribute, promote, advertise or otherwise exploit the Series or part thereof. Nothing in this Agreement will be construed to create fiduciary obligations owed by Amazon to Production Company or any Key Series Personnel or to require Amazon to distribute or exploit the Series in any particular manner to maximize the chance that Production Company or Key Series Personnel will receive contingent compensation. Production Company and Key Series Personnel expressly waive any claim to the contrary.
11. REPRESENTATIONS AND WARRANTIES
Amazon hereby represents and warrants that it has the full right and power to make and perform this Agreement. Production Company represents, warrants, and agrees that:
A. Neither Production Company, its employees and its financial institution(s) nor any Series Personnel are subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity list), the European Union or its member states, or other applicable government authority. In addition, Series Personnel will not be nationals or legal permanent residents of any of the following countries: Cuba, Iran, North Korea, Sudan, the Crimea region of Ukraine or Syria.
B. Production Company has the full right, power and authority to enter into this Agreement, to perform the acts required of it and to grant to Amazon all rights granted under this Agreement, including with respect to the Material, free and clear of any liens, adverse claims, encumbrances or other interests of any third party.
C. Production Company will fully comply with all applicable laws, rules, codes and regulations in connection with the Material and Services, including the UK Bribery Act 2010, U.S. Foreign Corrupt Practices Act, 15 U.S.C. Section 78dd-1 and 78dd-2 and any other applicable anti-corruption or anti-bribery laws and legislation anywhere in the world (“Relevant Requirements”). Production Company will provide Amazon with evidence of any of its compliance measures upon Amazon’s request. With respect to Production Company’s compliance with Relevant Requirements, Production Company will: (i) not engage in any activity, practice or conduct which would constitute an offence under the UK Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK, (ii) promptly report to Amazon any breach or potential breach of the Relevant Requirements of which the Production Company becomes aware, and (iii) have in place adequate procedures designed to prevent any Associated Person from undertaking any conduct that would give rise to an offence or breach under the Relevant Requirements (failure of which will be deemed to constitute a material breach of this Agreement by Production Company). As used herein, “Associated Person” means, in relation to a company (including an employee, agent or subsidiary), any person who performs services for or on that company's behalf.
D. All Material will be: (i) Production Company’s original work; and/or (ii) to a de minimis extent, in the public domain throughout the world. The Material will not violate any registered or unregistered copyright or trademark or other rights of any person or entity and will not infringe upon, violate or misappropriate any intellectual property or other personal, proprietary or contractual right of any third party.
E. Production Company will not accept, directly or indirectly, from any person or entity other than Amazon, any money, service or other valuable consideration for the inclusion of any product, service or other material into the Series.
F. The Production Company represents and confirms that the Materials shall be in conformity with all rules, regulations and codes prescribed under applicable laws, including without any limitation, Guidelines to Regulate Child Participation in TV Serials, Reality Shows and Advertisements issued by National Commission for Protection of Child Rights (NCPCR) and other advisories as available at <www.ncpcr.gov.in>, advisories and guidelines issued by National Commission for Women available at <http://ncw.nic.in/>, National Commission for Minorities available at <http://ncm.nic.in/>, National Commission for Backward Classes <www.ncbc.nic.in/>, National Commission for Human Rights available at <http://nhrc.nic.in/>; also guidelines and advisories issued by Indian Broadcasting Foundation. The Material and/or parts thereof shall be produced in accordance with all laws, statutes, ordinances, rules, regulations and requirements of all governmental agencies and regulatory bodies having jurisdiction with respect to the production thereof.
G. The Production Company represents and warrants that it has a prevention of sexual harassment policy which is in compliance with applicable laws and undertakes to ensure that all personnel engaged in the Series are required to comply with such prevention of sexual harassment policy.
H. Production Company will intimate promptly to Amazon on or prior to the execution date of this Agreement that it is registered as an MSME. If the Production Company represents to Amazon that it is an MSME then the Production Company shall promptly furnish to Amazon copies of the MSME Certificate evidencing its status as MSME. Amazon shall, only upon verification of the MSME Certificate submitted by the Production Company, be obligated to extend the benefits provided under the MSME law to the Production Company. In case the MSME Certificate is cancelled, withdrawn or surrendered or the Production Company is otherwise made ineligible to take benefits as an MSME under the MSME law, the Production Company undertakes to intimate Amazon immediately of such cancellation, withdrawal, surrender or ineligibility. If the Production Company fails to comply with the requirements of this clause, then Amazon may not provide Production Company with the benefits as available to the MSME under the MSME law. In this regard, the Production Company shall defend, indemnify and hold Amazon harmless against any claim, loss, damage, cost, expense or other liability (including attorney’s fees) that may arise from Amazon’s breach of MSME law or any other applicable law. For the purposes of this clause 11.H, “MSME” means a micro, small and medium enterprise registered as such under the Micro, Small and Medium Enterprises Development Act, 2006 or any other applicable law. “MSME Certificate” means the Udyam Registration Certificates, registrations and other documents as may have been issued to the Production Company, under the Micro, Small and Medium Enterprises Development Act, 2006 and/or any other applicable law.
12. INDEMNIFICATION
Production Company will indemnify, defend and hold harmless Amazon, its licensees, sublicensees, distributors, any party to which it assigns any of its rights hereunder, and its and their affiliates, successors, assigns, and each of their directors, officers, members, shareholders, employees, associates, agents, contractors and representatives (the “Amazon Parties”) from and against any losses, damages, liability, claims, costs, judgments and expenses (including, without limitation, reasonable outside attorneys’ fees) (hereinafter, “Loss(es)”) incurred by reason of any third-party claim arising in connection with (i) the Services and any development and production activities by Production Company in connection with the Series; (ii) the negligence, recklessness or other tortious acts or omissions committed by Production Company, Series Personnel, or any of their respective agents, employees, or invitees; or (iii) any breach or alleged breach of Production Company’s covenants, agreements, representations or warranties under this Agreement. Amazon will indemnify, defend and hold harmless Production Company from and against all Losses incurred by reason of any third-party claim arising in connection with Amazon's distribution, advertising and other exploitation of the Series, excluding only to the extent that such Losses arise out of or are related to matters for which Production Company indemnifies Amazon hereunder.
13. GENERAL PROVISIONS:
A. Survival: Amazon Rights (including Copyright Ownership), Insurance, Representations and Warranties, Indemnification, Confidentiality, Limit on Production Company’s Rights to Injunctive Relief, Governing Law, Venue provisions will continue in full effect after termination.
B. LIMITATION OF LIABILITY: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PRODUCTION COMPANY HEREBY WAIVES ALL CLAIMS AGAINST AMAZON AND ITS AFFILIATES FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES. PRODUCTION COMPANY HEREBY WAIVES ALL CLAIMS AGAINST AMAZON FOR DAMAGES OF ANY KIND ARISING FROM THIS AGREEMENT, WHETHER IN CONTRACT OR TORT AND UNDER ANY THEORY OF LIABILITY, IN EXCESS OF $50,000.00 AND AMAZON’S ENTIRE LIABILITY TO PRODUCTION COMPANY FOR SUCH DAMAGES WILL NOT EXCEED $50,000.00 WITH RESPECT TO SUCH WAIVER. NOTWITHSTANDING THE FOREGOING, THIS PROVISION WILL NOT BE DEEMED TO WAIVE OR LIMIT ANY OF PRODUCTION COMPANY’S RIGHTS AT LAW TO ENFORCE THIS AGREEMENT WITH RESPECT TO PAYMENTS DUE TO PRODUCTION COMPANY BY AMAZON.
C. Controlling Provisions: In the event of a conflict between the terms of these Standard Terms and the terms of the Deal Terms, the terms of the applicable Deal Terms will prevail.
D. No Implied Waiver: No waiver by either party of any breach of this Agreement in any one instance will be construed as a waiver by such party of any previous or subsequent breach of the Agreement. Each party’s remedies and rights in this Agreement will be cumulative and none of them will be in limitation of any other remedy or right.
E. Definitions: All instances of the word “including” will mean including, without limitation. The term (i) “Season” mean each season of the Series and “Seasons” mean all seasons of the Series, (ii) “Episodes” means any episode of each Season of the Series ordered by Amazon pursuant to the terms hereof, and (iii) “Ancillary Materials” mean original content related to the Series (e.g., behind-the-scenes, short-form content and on-screen commentary, the materials set out in Clause 1.B and any materials delivered by the Production Company pursuant to Clause 1.G.). All instances of the words “delivery” and “deliver” in connection with the Material will mean Production Company’s delivery of Material in accordance with this Agreement. Where not expressly stated to the contrary, all instances of the word “Series” will be deemed to include the pilot, if ordered.
F. Independent Contractor: Production Company will perform under this Agreement as an independent contractor, and this Agreement will not be construed to create a partnership, joint venture, association of person, agency, employment, or any other relationship between Amazon and Production Company. Production Company will not represent itself to be an employee, representative, or agent of Amazon. Production Company will have no authority to enter into any agreement on Amazon’s behalf or in Amazon’s name or otherwise bind Amazon to any agreement or obligation.
G. Assignment: Production Company will not assign or transfer any rights or delegate any obligations under this Agreement without Amazon’s prior written consent. Any assignment in violation of the foregoing will be deemed void. Amazon and any subsequent assignee may freely assign this Agreement, in whole or in part, to any party. This Agreement will inure to the benefit of the Parties, successors, assignees, licensees and grantees and associated, affiliated and subsidiary companies. Amazon may release the Series under any name or mark designated by Amazon or its assignees or distributors.
H. Severability: This Agreement and each of its provisions will be interpreted in a manner to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or invalid under, applicable law, such provision will be curtailed and limited only to the extent necessary to permit compliance with the applicable minimum legal requirement, and no other provision of this Agreement will be affected thereby. Any provision of this Agreement which is illegal, or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective only to the extent of such illegality or unenforceability, without affecting the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement illegal or unenforceable in any other jurisdiction.
I. Independent Counsel: Amazon encourages Production Company to seek the independent advice of an attorney regarding this Agreement. Production Company represents and warrants that Production Company has executed this Agreement without fraud, duress or undue influence.
J. Counterparts: This Agreement may be executed in two or more counterparts (and by different Parties on separate counterparts), each of which will be an original, but all of which together will constitute one and the same instrument. Any signed copy of the Agreement delivered by facsimile or electronic transmission will be treated for all purposes as if it had been delivered containing original signatures.
K. Agency Commissions: The fees, expenses and commissions of any attorney, accountant, agent or manager engaged by Production Company will be borne solely by Production Company.
L. Taxes: Fees payable under this Agreement will be exclusive of applicable national, state or local sales or use taxes or Value Added Tax, Service Tax or Goods and Services Tax (collectively, "Taxes") that Production Company is legally obligated to charge under the applicable laws. Production Company may charge and Amazon will pay any applicable Taxes, provided that such Taxes are stated on the original invoice that Production Company provides to Amazon and Production Company's invoices state such Taxes separately and meet the requirements for a valid Tax invoice under applicable laws and regulations and is issued within the prescribed time-limit. The Production Company undertakes to comply with any of the applicable provisions of such law including but not limited to: (i) timely issuance of compliant invoices (ii) making the invoices available to Amazon (iii) depositing applicable taxes on a periodic basis (iv) correctly reporting them to the government as required under tax laws. Under no circumstances, Production Company would separately recover Taxes from Amazon after issuance of invoice for the corresponding period. If at any time the credit for Taxes is denied to Amazon or payment of Taxes is sought from Amazon due to, but not limited to, issuance of a deficient invoice, default in payment of Taxes, inappropriate reporting or any other non-compliance of applicable laws and regulations by Production Company, Production Company shall indemnify Amazon against any denied credits or the amount so recovered as well as any interest and penalties imposed on Amazon. Amazon may provide Production Company an exemption certificate acceptable to the relevant taxing authority, in which case, Production Company shall not collect the Taxes covered by such certificate. Amazon shall maintain the right to deduct or withhold any taxes, levies or any similar amounts that Amazon may be legally obliged to withhold, from any amounts payable to Production Company under this Agreement, and payment to Production Company as reduced by such deductions or withholdings will constitute full payment and settlement to Production Company of Amazon’s obligations. Production Company agrees to provide necessary documentation including its Permanent Account Number or suitable declarations, as may be required, for Amazon to satisfy any information reporting or withholding obligations with respect to any payments under this Agreement. Production Company confirms that it would duly pay any applicable taxes, levies or similar amounts on its income, as applicable under this Agreement on all amounts on which taxes, levies or similar amounts are not or inadequately withheld and report and file a return of income under the applicable laws and provide the necessary certifications in this respect. The Production Company shall duly pass on any benefits including but not limited to increase in credits of input taxes (and provide basis for the same), decrease in tax rates and accordingly Amazon reserves the right to revise/ renegotiate the price for the scope of services agreed under this Agreement.
M. Title Transfer: To the extent that title to any physical property is transferred hereunder, Amazon takes title to all such physical property at Amazon’s business locations; it being acknowledged and agreed that title to all Material will transfer upon receipt by Amazon of such Material.
N. Further Assurances: Production Company hereby agrees to execute and deliver any and all instruments and documents and to do any other acts as Amazon or Amazon’s assignees or licensees may determine necessary or advisable to establish, evidence, maintain or defend Amazon’s rights hereunder and to otherwise effectuate the purpose and intent of this Agreement, which documentation may include copyright registrations, assignments and mortgages, account control agreements, pledge and security agreements, laboratory access letters, and UCC financing statements. Upon Production Company’s failure or refusal to do so within 5 business days following receipt of Amazon’s request (reducible to a shorter period of time as Amazon may reasonably require due to production exigencies), Production Company hereby irrevocably appoints Amazon as its attorney-in-fact with the right (but not the obligation, and which right is coupled with an interest), to execute, deliver, file and record, on Production Company’s behalf and in Production Company’s name, such instruments and documents.
O. Notices: All notices, accountings, payments and other communications between the Parties will be in writing and will be deemed received when delivered in person or by electronic mail or facsimile or five (5) days after being deposited in the mail, postage prepaid, certified or registered mail addressed to the other Party at the address(es) set forth in the Development and Production Services Agreement, or at such other address as such Party may supply by written notice to the other. In addition, any Season order will be binding on Amazon only if provided in writing.
P. Entire Agreement; Written Modifications: This Agreement contains the entire understanding of the Parties hereto related to the subject matter herein and cannot be modified or amended except by a written instrument signed by the Parties.