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IFFG
MEMBERSHIP AGREEMENT
This
agreement is made by and between Member, at the address provided to the IFFG
(“Member”) and IFFG, LLC (hereinafter “IFFG” or
“Independent Film Finance Group”),
on the Membership Application Date, in connection with Member’s
application to become an IFFG Member, as follows:
Part
I - Introduction
A.
Membership Benefits:
1.
Access to IFFG legal products and services. Presently IFFG offers the IFFG
Film Business Plan, IFFG Entertainment Incorporation, IFFG Entertainment LLC Formation, and the
IFFG Investment Contract, as
described on the IFFG Website. Such services are subject to change
without notice; and
2.
Free one-year subscription to the Film & Television Law Quarterly;
and
3.
Membership number; and
4.
Discounts at participating Preferred Providers (Discounts will be
specified on the Resources Page of the IFFG Website); and
5.
Mediation assistance when both the Producer and the Investor are members
of IFFG, subject to the terms of this Agreement.
B.
Membership Requirements:
The
following criteria must be met by every Member applying for membership
in the IFFG at the Member Level:
1.
Member must not breach the terms and conditions of this Agreement; and
2.
Member must pay in full the Annual Fee at the Member Level, as
applicable, which is posted on the IFFG Website.
3.
Credit: IFFG will be accorded a “Legal & Finance Assistance by
Independent Film Finance Group” credit in all territories and
Media, in the opening and closing credits on all positive prints of the
Picture, or as available for television and music projects, and above
any other legal, accounting, or representation credit wherever placed.
Part
II - General Terms
A.
TERM: The following shall hereinafter be referred to as the “Term.”
The term of this Agreement shall start upon the Membership Application
Date and shall continue in perpetuity provided that there are services,
disputes, benefits, or confidential information between IFFG and Member
or Member and any other member. The
Term of IFFG Benefits shall be on a month-to-month basis, commencing on
the date of the Membership Services Date and ending on the last day of
the same month, unless Member shall request, and IFFG shall agree to the
continuation of IFFG Benefits into the next month (“IFFG Benefits
Term”). In no event shall the IFFG Benefits Term extend beyond the
Member Termination Date.
B.
PROFESSIONAL AND WORKMANLIKE MANNER: Member agrees to render any
services performed hereunder for any other Member, and to participate in
any membership activities as described herein, in a professional and
workmanlike manner.
C.
WARRANTIES AND INDEMNITIES: Member hereby warrants that it has the right
and authority to enter into this Agreement and to agree to the terms
agreed to by it herein; that the consent of no other person, firm,
corporation or otherwise is required to enable Member to participate in
the membership activities as described herein and that such
participation will not violate the rights of any kind of any third
parties. Member agrees to indemnify and hold harmless IFFG, its
officers, employees, shareholders, representatives assignees, and
licensees from and against any and all liabilities, damages, and claims
(including attorneys' fees and court costs) arising from the breach of
Member's warranties herein.
D.
REMEDIES: If IFFG breaches any covenant or condition of this Agreement,
Member acknowledges and agrees that Member's sole remedy shall be an
action at law to recover payments and/or monetary damages, pursuant to
the mediation and arbitration rules herein.
In no event shall any of the obligations of IFFG under this
Agreement, or any breach there of, create a right of rescission or right
to injunctive or other equitable relief in Member.
E.
LIMITATION ON REMEDIES: In no event shall the total liability of IFFG in
connection with any obligations provided for herein with the Member
exceed the Annual Fee received by IFFG from such single Member for the
single year in which such liability first arose. In addition, in no
event shall the total liability of IFFG Preferred Providers in
connection with any obligations provided for herein with the Member
exceed the total amount of money paid directly by Member to such IFFG Preferred Provider.
F.
NOTICES: All checks and notices from IFFG to Member shall be sent to
Member by certified mail return receipt requested at the address
provided IFFG in the Membership Application Form. All notices shall be
deemed given upon deposit in the ordinary course of the U.S. mail by the
method specified above.
G.
ASSIGNMENT: IFFG may assign, license, transfer or otherwise dispose of
this Membership Agreement,
and any of the rights, licenses, privileges or property conveyed, in
whole or in part; it
being acknowledged, however, that all rights, duties and obligations of
the Member hereto are personal and non‑assignable.
H.
CREDIT: The credit provisions are as follows:
IFFG
will be accorded a
“Special Thanks to the Independent Film Finance Group” credit in
all territories and Media, in the opening and closing credits on all
positive prints of the Picture, or as available for television and music
projects, immediately before any other legal, accounting, or
representation credit. Such screen credits as stated in this clause
shall also appear in any and all promotional or publicity materials and
in paid advertisements where any legal, accounting, or representation
credit shall appear.
I.
CONFIDENTIALITY: Member agrees that he/she will not, whether during the
term of this Agreement or thereafter, use any material or information
provided to Member by IFFG in any manner other than in the completion of
his/her obligations under this Agreement. Member further agrees not to
disclose to any third party any confidential information provided by IFFG, including the terms of this Agreement.
J.
RELATIONSHIP OF PARTIES: Neither the Member nor its employees or agents
shall be deemed to be IFFG's employees, agents, or contractors.
Nothing in this agreement is intended to, or shall be deemed to,
constitute a partnership or joint venture between the parties. Neither
party shall incur any debts or make any commitments for the other.
K.
ARBITRATION: In the event of a dispute between the parties hereto, the
parties agree to submit such dispute to binding arbitration under the
Commercial Arbitration Rules of the American Arbitration Association,
before a single arbitrator with knowledge of the entertainment industry,
in the City of Beverly Hills, California. The arbitrator must be
approved by IFFG in writing. The aggrieved party shall file a notice to
arbitrate with the American Arbitration Association,
whose rules and
procedures shall govern such arbitration. The
language of the arbitration shall be English. The
award of the arbitrator may be entered in any court of competent
jurisdiction for enforcement. All
costs of the arbitration, including reasonable outside attorneys fees
and other out-of pocket expenses of the parties, whether or not such
expenses might be deemed recoverable costs of litigation under the
California Rules of Court, shall be awarded and apportioned by the
arbitrator to the party or parties that prevail in the arbitration. Any
award in an arbitration initiated under this clause shall be limited to
monetary damages and shall include no injunction or direction to any
party other than the direction to pay a monetary amount. The
arbitrators will have no authority to award punitive, consequential or
other damages not measured by the prevailing party's actual damages, and
any award hereunder against IFFG shall be subject to the Limitation On
Remedies provision and the Waiver Of Claims provision herein, except as
may be required by statute.
L.
RIGHT TO COUNSEL: Member
expressly understands that Member has the right to seek separate counsel
in respect to this Agreement, and that IFFG has advised Member to do so.
By executing this Agreement Member warrants and represents that
Member has obtained the advise of separate counsel, or has voluntarily
waived such right.
M.
SEVERABILITY:
If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of the
Agreement shall continue in full force and effect and shall in no way be
impaired or invalidated.
N.
Termination:
It is understood by Member that IFFG may terminate Member's services at
any earlier date than those specified above for breach of any provision
of this agreement without notice.
O.
WAIVERS: All rights of the
parties are separate and cumulative, and no one of them, whether
exercised or not, shall be deemed to be to the exclusion of any other
rights and shall not limit or prejudice any other legal or equitable
rights or remedies which the parties may have.
The parties shall not be deemed to waive any of their rights or
remedies under this Agreement, unless such waiver is in writing and
signed by the party to be bound. No
delay or omission on the part of either party in exercising any right
shall operate as a waiver of such right or any other right or remedy.
A waiver on any one occasion shall not be construed as a bar to
or waiver of any right or remedy on any future occasion.
P.
WAIVER OF CLAIMS: Member hereby waives and relinquishes any rights or
remedies at law, in equity or otherwise, and further releases IFFG and
IFFG's employees, agents, successors, licensees, and assigns from, and
covenants not to sue IFFG, or any of them, with respect to any claim,
cause of action, liability or damage of any nature whatsoever arising
out of or in connection with the exercise of any provision herein. The
aforesaid waivers are hereby made by Member, both on Member's own behalf
and on the behalf of Member's heirs.
Q.
DISCLAIMER
OF WARRANTIES. IFFG
MAKES NO EXPRESS, IMPLIED, OR LIMITED WARRANTIES TO MEMBER, NEITHER
BY THIS WEBSITE NOR BY ANY DOCUMENTATION, COMMUNICATIONS, OR PACKAGING.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IFFG AND ITS
SUPPLIERS PROVIDE THE WEBSITE, IFFG BENEFITS AND SUPPORT SERVICES (IF
ANY) AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER WARRANTIES
AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT
LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF
MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY OR
COMPLETENESS OR RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF
VIRUSES AND OF LACK OF NEGLIGENCE, ALL WITH REGARD TO THE WEBSITE AND IFFG
BENEFITS, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT
SERVICES. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET
ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR
NON-INFRINGEMENT WITH REGARD TO THE IFFG BENEFITS OR WEBSITE.
R.
CHANGE IN TERMS: IFFG may change the terms of this Agreement from
time-to-time solely at the discretion of IFFG, and no notice of such
change in terms will be provided to Member. If the terms of this
Agreement are changed by IFFG, such revised Agreement will be posted on
the IFFG website or such other equally accessible location.
S.
FILM & TELEVISION LAW QUARTERLY LISTING AND DISPLAY AD RULES:
Listings and display ads are fee based and based on a
first-come-first-served basis. The Film & Television Law Quarterly
standard Terms and Conditions are incorporated herein and made a part
hereof. Ads may be edited for suitability and content such as
appropriateness of language. Member is responsible for copy, artwork,
and meeting applicable deadlines as found in the Terms and Conditions of
the Film and Television Law Quarterly.
T.
MANDATORY DISCLOSURES: If the IFFG discovers fraudulent, abusive,
misleading, deceptive or suspicious securities compliance or disclosure
acts or omissions by Producer Members, whether such acts or omissions
are committed willfully, knowingly, or negligently, IFFG will disclose
such to federal and/or state officials as required by statute, upon
discovery of such acts or omissions.
Nothing herein shall create a duty in IFFG to investigate any
such compliance or disclosure acts or omissions, and Member expressly
waives any such duty or obligation by IFFG.
U.
IFFG WEBSITE DISCLAIMER: The Disclaimer of Liability on the IFFG Website
is hereby incorporated herein and made a part hereof.
V.
IFFG WEBSITE PRIVACY STATEMENT: The Privacy Statement on the IFFG Website is hereby incorporated herein and made a part hereof.
W.
IFFG WEBSITE TERMS AND CONDITIONS: The Terms and Conditions on the IFFG Website are hereby incorporated here in and made a part hereof.
X.
FORCE MAJEURE: “Force Majeure” means any fire, flood, earthquake, or
public disaster; strike, labor dispute or unrest; embargo, riot, war,
insurrection or civil unrest; any act of God, any act of legally
constituted authority; or any other cause beyond IFFG's control which
would excuse IFFG's performance as a matter of law. If by reason of
force majeure, IFFG's performance hereunder is delayed, hampered or
prevented, then any required performance by IFFG herein shall be
extended for the amount of time of such delay or prevention up to a
maximum of six months.
Y.
GOVERNING LAW/ JURISDICTION: This Agreement shall be governed by, and
construed, in accordance with the laws of the State of California,
applicable to contracts entered into and to be fully performed therein.
If for any reason the Arbitration provision herein shall be held to be
unenforceable by a court of competent jurisdiction, then such dispute or
controversy shall be adjudicated in the Federal and/or State courts
located in Beverly Hills, California, which such courts shall have
exclusive jurisdiction over any claims arising hereunder. Nothing herein
shall serve to prevent enforcement of binding Arbitration upon the
parties as provided in this Agreement, nor to in any way contradict the
Agreement executed by the parties regarding Arbitration in Beverly
Hills, California.
Z.
AMENDMENT MUST BE IN WRITING: This Agreement contains the full and
complete understanding between the parties, supercedes all prior
agreements and understandings, whether written or oral, pertaining
thereto, and cannot be modified except by a written instrument signed by
each party.
Part
III – Investors
A.
INVESTOR WARRANTIES: Member warrants and represents that Member has
read, understood, and agreed to the following statements. Member
expressly understands that the IFFG is not an issuer of securities, and
does not recommend or sell securities on behalf of Producer Members.
Member understands that the IFFG does not provide due diligence
services, does not investigate securities disclosures, business plans,
prospectus, or claims made by Producer Members, or serve in any capacity
as an investment advisor to Investor Members or Producer Members. Member
understands that the IFFG does not owe any fiduciary duty of any kind to
Member. Member understands that the IFFG does not produce film,
television, or music productions or oversee Member Productions, and the IFFG
is contractually prohibited from interfering in the creative or
production elements of Member Productions.
B.
INVESTOR WAIVER OF CLAIMS: Member hereby expressly waives and relinquishes any rights or
remedies at law, in equity or otherwise, and further releases IFFG and
IFFG's employees, agents, successors, licensees, and assigns from, and
covenants not to sue IFFG, or any of them, with respect to any claim,
cause of action, liability or damage of any nature whatsoever arising
out of or in connection with the exercise of any provision herein. The
aforesaid waivers are hereby made by Member, both on Member's own behalf
and on the behalf of Member's heirs.
C.
INVESTOR/ PRODUCER MEDIATION: In the event of a dispute between an
Investor Member and a Producer Member, the parties agree to first submit
such dispute to nonbinding mediation, under the rules of a neutral,
non-profit mediation service selected by IFFG, before a single neutral
mediator with knowledge of the entertainment industry, in the City of
Los Angeles, California. The mediator must be mutually approved by the
parties in writing. The aggrieved party shall file a notice to mediate
with the IFFG, who
shall select a mediation service whose rules and procedures shall govern
such mediation. The Investor Member and Producer Member agree to work in
good faith toward a negotiated settlement of the disputed issue or
issues, and agree to attend together not less than two mediation
sessions. The cost of any such mediation service, and the cost of the
mediator shall be split equally between the Investor Member and the
Producer Member, although it is agreed that each
party shall bear its own costs and expenses, including the
cost of counsel or representation if either or both parties choose to be
represented during the mediation. If the parties shall fail to reach a
negotiated settlement during such mediation, then both parties agree to
binding Arbitration pursuant to Part III, Section D below.
D.
INVESTOR/ PRODUCER ARBITRATION RULES: In the event of a dispute between
an Investor Member and a Producer Member hereto, the parties agree to
submit such dispute to binding arbitration under the Commercial
Arbitration Rules of the American Arbitration Association, before a
single arbitrator with knowledge of the entertainment industry, in the
City of Beverly Hills, California. The arbitrator must be approved by
both parties in writing. The aggrieved party shall file a notice to
arbitrate with the American Arbitration Association,
whose rules and
procedures shall govern such arbitration. The
language of the arbitration shall be English. The
award of the arbitrator may be entered in any court of competent
jurisdiction for enforcement. The
cost of any such arbitration service, and the cost of the arbitrator
shall be split equally between the Investor Member and the Producer
Member, although it is agreed that each
party shall bear its own costs and expenses, including the
cost of counsel or representation if either or both parties choose to be
represented during the arbitration. All costs of the arbitration,
including reasonable outside attorneys fees and other out-of pocket
expenses of the parties, whether or not such expenses might be deemed
recoverable costs of litigation under the California Rules of Court,
shall be awarded and apportioned by the arbitrator to the party or
parties that prevail in the arbitration. Any
award in an arbitration initiated under this clause shall be limited to
monetary damages and shall include no injunction or direction to any
party other than the direction to pay a monetary amount. The
arbitrators will have no authority to award punitive, consequential or
other damages not measured by the prevailing party's actual damages,
except as may be required by statute.
Part
IV - Producers
A.
FEDERAL SECURITIES LAW: Member intends to raise capital from third
parties, and in so doing agrees to do so in a manner that: (i) will not
violate any federal or state securities law; and (ii) will not require
or constitute a ``public offering'' or “exempt offering” of
“securities,” as those terms are defined in the Securities and
Exchange Act of 1933 and the rules and regulations of the Securities and
Exchange Act thereunder unless and until the Member registers such
offering with the SEC, or files for an exemption from registration with
the SEC, and the applicable States; and (iii) Member agrees to sign, and
to have any third party sign, any documentation required by law
regarding Member’s securities related work on the Film, Television or
Music Project, and regarding his/her role as an investor representative,
if any.
B.
NO RELATIONSHIP BETWEEN PARTIES: Member is not and shall not be
construed to be an employee, partner, joint venturer, agent,
representative or participant of or with IFFG pursuant to this
Agreement. Member does not and shall not have any right or authority
whatsoever to assume or create any obligation or responsibility, express
or implied, on behalf of or in the name of IFFG or to bind IFFG in any
manner.
C.
INDEMNIFICATION: Member agrees hereby that the IFFG shall be held
harmless and be indemnified by said Member for any liability, loss,
(including amounts paid in settlement), damages or expenses (including
reasonable attorney's fees) suffered by virtue of any acts or omissions
or alleged acts or omissions arising out of said Member's activities
with, for or in connection with the IFFG.
Part
V - Submissions
I
(member) agree that all material, ideas and messages are submitted
pursuant to the following terms and conditions, and that access to this
website is granted subject to my express agreement to the following terms and
conditions:
1.
I (member) acknowledge that because of your position in the entertainment
industry you (IFFG, LLC) receive numerous unsolicited submissions of concepts,
synopsis, treatments, scripts, ideas,
formats, plots, characters or
other intellectual property ("materials")
and that many such submissions heretofore or hereafter received by you
are similar to or identical to those developed by you or your employees
or otherwise available to you. I understand that you do not purchase
literary properties. I understand that I will not be entitled to any
compensation because of the use by you of any such similar or identical
material. I acknowledge that no fiduciary or confidential relationship
now exists between you and me, and I further acknowledge that no such
relationships are established between you and me by reason of this
agreement or by reason of my submission to you of said material.
2.
I will indemnify you from and against any and all claims, expenses,
losses, or liabilities (including, without limitation, reasonable
attorneys' fees and punitive damages) that may be asserted against you
or incurred by you at any time in connection with said material, or any
use thereof, including without limitation those arising from any breach
or alleged breach of the warranties and promises given by me herein.
3.
I have retained at least one copy of said material, and I release you
from any and all liability for loss or other damage to the copies of
said material submitted to you hereunder.
4.
I hereby acknowledge and agree that there are no prior or
contemporaneous oral agreements in effect between you and me pertaining
to said material, or pertaining to any material (including, but not
limited to, agreements pertaining to the submission by me of any
material). I further agree that no other obligations exist or shall
exist or be deemed to exist unless and until a formal written agreement
has been prepared and entered into by both you and me, and then your and
my rights and obligations shall be only such as are expressed in said
formal written agreement.
5.
Should any provision or part of any provision be void or unenforceable,
such provision or part thereof shall be deemed omitted, and this
agreement with such provision or part thereof omitted shall remain in
full force and effect. This agreement shall at all times be construed so
as to carry out the purposes stated herein.
6.
I hereby state that I have read and understand this agreement and that
no oral representations of any kind have been made to me and that this
agreement states our entire understanding with reference to the subject
matter hereof. Any modification or waiver of any of the provisions of
this agreement must be in writing and signed by both of us.
Part
VI - Definitions
A.
Definitions: The following definitions are referred to throughout the
Agreement:
a)
“Annual Fee” – The fee that Member must pay in full each year on
the Membership Application Date and thereafter before the Member
Termination Date at the Membership Level, as applicable, which is posted
on the IFFG Website. The Annual Fee must be paid in advance of the year
for which the Annual Fee is due.
b)
“Development Stage” – The stage of a film or television production
before production funding has been raised.
c)
“Distribution Provider” – A person or company that is an IFFG Preferred Provider and works in the distribution business.
d)
“IFFG Benefits” – Any of the enumerated benefits that a Member may
become eligible for under this Agreement, as found in Part I, section A.
of this Agreement.
e)
“IFFG Preferred Providers” – Persons or companies who provide time
or services to IFFG Member Productions. Placement of a person or company
on the IFFG Website does not signify such person or company is currently
an IFFG Preferred Provider.
f)
“IFFG Website” – The website that IFFG maintains as the principal
source of communication between IFFG and Member.
Presently the IFFG Website is www.independentfilmfinancealliance.com.
g)
“Investor Member” – An IFFG Member investing in another Member’s
film, television or music project.
h)
“Member” – A person who has agreed to the terms of this Agreement
and paid the applicable Annual Fee, or for which another Member has paid
the applicable Annual Fee.
i)
“Member Productions” – A film, television or music production
being produced by an IFFG Producer Member.
j)
“Membership Application Date” – The first day of the month in
which Member completes the Membership Application Form on the IFFG Website and pays the Annual Fee in full.
k)
“Membership Application Form” – The form maintained on the IFFG Website that is designated by
IFFG as the principal place for Users to
apply to become Members of IFFG.
l)
“Membership Services Date” – The first day of the month in which
Member becomes eligible for a specific IFFG Benefit and IFFG, or an
affiliate or partner of IFFG, shall agree to provide such benefit to
Member.
m)
“Member Termination Date” – Refers to the date upon which all IFFG
Benefits will cease for Member. The
Member Termination Date shall not be later than the date that is 12
months after the Membership Application Date, unless Member shall pay
the then applicable Annual Fee as posted on the IFFG Website not less
than 30 days before the Member Termination Date.
n)
“Producer Member” – An IFFG Member producing a film, television or
music project.
o)
“Production Stage” – The stage of a film or television production
after production funding has been raised and beginning upon the start
date of principal photography of the production as such terms are
understood in the entertainment industry.
AGREED
TO AND ACCEPTED
Member
expressly agrees to the terms and conditions of this Agreement by
clicking “I Agree” on the Membership Application Form of the IFFG Website. Member understands that all of
IFFG’s services, obligations,
and agreements herein are expressly conditioned upon Member’s full and
complete agreement to be bound by the terms and conditions of this
Agreement.
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