Purpose. The Client agrees to use the service for the intended purposes of utilizing film utilizing film distribution resources and related solutions, including but not limited to any distribution-related activities ranging from general film aggregation to sales pitch requests. PowerFlix has granted Client permission to use the service solely for the intended purpose.
Accuracy. The Client agrees that all information provided by the Client shall be accurate and complete.
Adherence. The Client agrees to adhere to any and all guidelines, agreements or other rules and regulations set out by PowerFlix.
Client Intellectual Property. Any intellectual property submitted by the client belongs to the client, shall be considered client intellectual property (“Client Intellectual Property” or “Client IP”). The Client IP shall be the sole property of the Client, including any copyright rights, trademark rights, moral rights or other rights which may be included.
Development Materials. Any intellectual property which is paid for by the Client and developed or created specifically for Client, whether developed/created by PowerFlix or a third-party, shall be considered a work made for hire and shall be considered Client IP. This shall include, but not be limited to, assets procured as part of PowerFlix’s add-on services, such as creative assets, posters, trailers, caption files or similar film assets. However, if Client enters into a distribution-related agreement with a third party, the third party agreement may stipulate different terms around the ownership of assets and specific intellectual property. For avoidance of doubt, the Service Engagement Agreement, attached separately, shall govern the rules around development materials.
License of Client IP. PowerFlix shall be granted an initial one (1) year license of the Client IP upon Client’s successful submission of a film and its related services (“License”). The License shall provide PowerFlix with the exclusive right to exploit the IP in the territory and service(s) selected by the Client for the duration of the license period and any renewal period, with a royalty equivalent to five percent (5%) of gross proceeds unless otherwise specified. The License shall renew automatically on a quarterly basis following the initial one (1) year period until terminated by Client or PowerFlix.
At PowerFlix’s option and upon written notice given to Client, PowerFlix shall have the right to terminate this ToS Agreement and related Client agreements and shall be entitled to remove, pause and/or discontinue services to Client and may declare all obligations hereunder due and owing and may proceed to enforce payment and performance by Client and exercise all of PowerFlix’s rights and remedies at law or equity, if (i) Client breaches any material covenant, agreement or obligation under this ToS Agreement and fails to cure such breach within forty-eight (48) hours after receipt of written notice from PowerFlix; (ii) any representation or warranty made by Client is untrue or incomplete in any material respect on or as of the date made; or, (iii) Client becomes insolvent or a petition under any bankruptcy or insolvency law shall be filed by or against Client or any property of Client is attached and such attachment is not released within 30 days or if Client executes an assignment for the benefit of creditors or if a receiver, custodian, liquidator or trustee is appointed for Client.
Notwithstanding the termination of this ToS Agreement, Client shall remain liable for all its obligations and warranties hereunder to any sublicensee to whom the PowerFlix may have licensed the rights prior to the date of termination. The termination of this ToS Agreement for any reason whatsoever shall not affect the validity of any agreements entered into between PowerFlix and any assignees, sublicensees or other third parties.
If PowerFlix fails, refuses or is unable for any reason whatsoever to render PowerFlix's material services hereunder or such material services are interrupted or materially interfered with by reason of any governmental law, ordinance, order or regulation, or by reason of fire, flood, earthquake, labor dispute, lockout, strike, accident, act of God or public enemy or by reason of any other cause, thing or occurrence of the same or any other nature not within Client's control (collectively, “Force Majure”), Client shall have the right: (i) to terminate the Agreement and Client shall have no further obligation to PowerFlix hereunder (except to pay accrued but unpaid compensation in the event of Force Majeure or the death or disability of PowerFlix), or (ii) at Client's option, to suspend the Agreement for a period equal to the duration of any such failure, refusal, or inability or the occurrence of any events of Force Majeure, and no compensation shall be paid or become due to PowerFlix hereunder for such period. No suspension shall relieve PowerFlix of PowerFlix's obligation to render services hereunder when and as required by Client under the terms hereof.
Notwithstanding the foregoing, upon a material breach by PowerFlix of any of the terms and conditions of this Agreement, Client shall immediately have the right, exercisable at any time, to terminate this Agreement by so notifying PowerFlix; provided, that Client agrees to notify PowerFlix in writing of such election to terminate and PowerFlix shall have a period of forty-eight (48) hours following receipt of such notice within which to cure such breach, provided that such breach is curable and was not willful, and provided further that the foregoing right to cure by PowerFlix shall not be deemed a waiver of Client's right to recover damages resulting from PowerFlix's breach. PowerFlix has the right to terminate this Agreement, for any breach by Client, provided that PowerFlix agrees to notify Client in writing of such election to terminate and Client shall have a period of forty-eight (48) hours following receipt of such notice within which to cure such breach, provided that such breach is curable and was not willful and provided further that the foregoing right to cure by Client shall not be deemed a waiver of PowerFlix's right to recover damages resulting from Client's breach.
Client agrees that upon termination for any reason, Client shall not be refunded. Further, Client agrees that upon termination, if any third-party service is currently in progress (e.g., marketing materials are being produced such as a trailer or poster; or perhaps, a caption file is being produced), such services can be paused or canceled at the election of the third-party vendor (without refund to the Client), or they can complete the service, and PowerFlix shall deliver whatever deliverable is completed directly to the client, within a commercially reasonable time of completion thereof. Further to this, if a Client is on a monthly payment plan and has not fulfilled the equivalent of one (1) year of consecutive or non-consecutive payments (totaling twelve (12) months, any and all fees owing to PowerFlix by client shall be immediately due and payable and charged to the payment on file, billed directly to the Client but in any event shall be the responsibility of the Client which shall be payable immediately upon termination.
Client hereby represents and warrants that (i) it has the full right, power and authority to enter into this ToS Agreement and to grant the rights granted herein, (ii) Client owns or controls all rights in and to the Picture and in and to all literary, dramatic and musical material included therein required for PowerFlix to exercise the Licensed Rights, without any lien, claim or other encumbrance thereon, (iii) with respect to each musical composition in the Picture, the non-dramatic public performance rights necessary for exhibition and exploitation of the Picture hereunder are: (A) controlled by American Society of Composers, Authors and Publishers, Broadcast Music, Inc., or SESAC, (B) in the public domain, or (C) owned by or licensed to Client, so that no additional clearance of, or payment with respect to, such rights is required for use in the Picture, (iv) all musical compositions and/or performances of musical compositions contained in the Picture have been licensed for in-context and/or out-of-context use on a “flat buy-out basis”, in all media, now known for, among other things, use in the territory of distribution and time period of distribution and no additional payment for the use of any such composition or performance shall be required, and in particular, no residuals, royalties, reuse fees, mechanical rights fees or any other fees or costs of any kind will be required for use of any such performance or composition as contemplated herein, (v) all licenses of any material licensed for use in connection with the Picture contain language to the substantive effect that the Client of such material has not and shall not commit any act likely to prevent or hinder the full enjoyment of the rights that are licensed hereunder, (vi) no part of the Picture nor the exhibition, distribution, exploitation, promotion or other use of the Picture by PowerFlix or its licensees will violate or infringe upon any rights of any third party, (vii) there are no guilds or unions that may claim jurisdiction over the services to be rendered by PowerFlix, or if any guilds or unions are applicable to the production or distribution of the Picture, PowerFlix shall have no obligations in connection therewith (it being acknowledged that the cast are being engaged on a low budget PACT Equity form), (viii) there is no action, suit, claim or proceeding pending, affecting or threatened against the Picture, its producers, Client or any distributor of the Picture, (ix) Picture is not obscene or defamatory and shall not violate or infringe any rights of any third party, including, but not limited to, with respect to copyright, trademark, unfair competition, contract, defamation, privacy or publicity rights, (x) that Client meets all of the eligibility requirements for the safe harbor certification set forth in 18 U.S.C. §2257A(h)(1) and 28 C.F.R. §75.9(a)(1)-(3), (xi) it regularly and in the normal course of business collects and maintains, and with respect to the Picture that are the subject of this agreement, shall collect and maintain, individually identifiable information regarding all performers, including minor performers, employed by the undersigned, pursuant to tax, labor, and other laws, labor agreements or otherwise pursuant to industry standards, where such information includes the name, address and date of birth of the performer, in accordance with 28 CFR part 75, (xii) Client shall by the deadlines established in 28 C.F.R. §75.9 (e), file with the Attorney General of the United States the certification provided under 18 USC 2257A(h) and 28 CFR § 75.9, and promptly thereafter, but within not less than ten (10) business days, provide PowerFlix with a true, correct and complete copy thereof and (ix) Client shall not authorize or permit the release of the Picture in any media within or outside the Territory prior to PowerFlix’s initial release hereunder.
Client warrants, guarantees and otherwise confirms that no lender, financier, vendor, or other third-party has been granted a copyright mortgage, lien or other security instrument over any materials (to include but not be limited to any screenplay, treatment or otherwise), which has not been disclosed to PowerFlix. Client and PowerFlix agree that if Client breaches this paragraph, that Client shall agree to reinstate the following paragraph as a remedy and that PowerFlix shall have all other remedies under the law ordinarily available to PowerFlix, which shall be limited to damages at law (i.e. money damages). Client warrants that any and all Client IP submitted, shall be the sole property of Client and Client holds all right, title and interest to the submission and any and all licenses thereto. Further, client warrants that all statements made are true and complete. Client warrants that client is not committing any fraud and is not engaging in, whether directly or as an accomplice, in any grossly negligent or felonious criminal act by using PowerFlix.
Client shall indemnify, defend (at PowerFlix’s election), and hold harmless PowerFlix and its officers, agents, employees, affiliates, licensees, assigns or any third-party whether or not in privity of contract with PowerFlix in connection with this ToS Agreement, including Vendors, from and against any and all claims, damages, liabilities, costs and expenses, including reasonable outside attorneys’ fees and disbursements, arising out of (A) any breach or, in connection with a third party claim, alleged breach of any representation, warranty, covenant or agreement made by Client herein, (B) the exercise by PowerFlix of the Licensed Rights in accordance with this ToS Agreement, or (C) the violation or infringement of the rights of any third party as a result of the exhibition, distribution, exploitation, promotion or other use of the Picture by PowerFlix or its licensees in accordance with this ToS Agreement.
PowerFlix shall indemnify, defend (at Client’s election), and hold harmless Client and its officers, agents, employees, affiliates, licensees and assigns from and against any and all claims, damages, liabilities, costs and expenses, including reasonable outside attorneys’ fees and disbursements, arising out of any breach or, in connection with a third party claim, alleged breach of any representation, warranty, covenant or agreement made by PowerFlix herein or any grossly negligent or criminal act of PowerFlix, its officers, agents, employees, affiliates, licensees and assigns.
No Liens/Encumbrances: Without limiting the generality of the foregoing, parties represent and warrant that there are not now any liens, claims, encumbrances, legal proceedings, restrictions, agreements or understandings which might conflict or interfere with, limit, derogate from, or be inconsistent with or otherwise affect any of the provisions of this ToS Agreement or any of the representations or warranties of parties contained herein, including without limitation, any UCC filings, copyright assignments or other liens inconsistent herewith, or offsets, or other costs charged against the Picture by any distributor(s) pursuant to cross-collateralization agreements or otherwise. The parties further represent that the parties have obtained all necessary releases, clearances and licenses and the parties have the legal right to fully exploit the Project.
Consents. All authorizations, approvals, consents, licenses, exemptions, filings, registrations, notarizations and other matters, official or otherwise, required by parties or advisable in connection with the entry into, performance, validity and enforceability of this ToS Agreement and the transactions contemplated herein by parties have been obtained or effected and are in full force and effect.
Further Assurances. The Client agrees to execute such additional documents consistent herewith as may be necessary or desirable for PowerFlix to enforce its rights hereunder within a commercially reasonable time of any request by PowerFlix, which such commercially reasonable time shall not exceed five business days. After the expiration of five business days, Client agrees to appoint PowerFlix as its attorney-in-fact for the purpose of executing such documents. PowerFlix shall provide copies.
Survival. The parties’ warranties and representations are of the essence of this ToS Agreement and shall survive the early termination hereof. None of parties’ warranties and representations shall in any way be limited by reason of any investigation made by the parties or on behalf of the parties regarding said warranties and representations.
Client agrees that these ToS Agreement shall be governed by the laws of the State of California and the United States of America.
The entry into and performance of this ToS Agreement and the transactions contemplated hereby do not (and will not) conflict with: (i) any existing law or regulation or any official or judicial order; (ii) its articles of organization; or, (iii) any agreement or document to which it is a party or which is binding upon it or any of its assets.
In the event of any dispute arising out of or in connection with this Agreement, the parties shall first attempt to resolve the dispute through amicable negotiations within thirty (30) days of written notice. If no resolution is reached through negotiations, the parties shall proceed to arbitration.
All actions or proceedings arising under or in connection with this ToS Agreement including but not limited to any breach of this ToS Agreement, shall be submitted to JAMS Worldwide (“JAMS”) for binding arbitration under its Comprehensive Arbitration Rules and Procedures if the matter in dispute is over Two Hundred Fifty Thousand U.S. Dollars (US$250,000) or under its Streamlined Arbitration Rules and Procedures if the matter in dispute is Two Hundred Fifty Thousand U.S. Dollars (US$250,000) or less (as applicable, the “Rules”) to be held solely in Los Angeles County, California. The decision of the arbitrator shall be binding on the parties and not appealable. Any judgement issued by the arbitrator can be enforced by any court of competent jurisdiction to enforce any such judgment.
Credentials. To safeguard your account and personal information, please always protect your login credentials by using strong, unique passwords and avoiding sharing sensitive details with unauthorized parties.
Suspicious Activity. Client shall report any suspicious activity which Client believes Client is experiencing directly in connection with Clients use of PowerFlix, including but not limited to emails from third-parties with regard to your use of PowerFlix which is not directly from PowerFlix or a PowerFlix representative, charges/credits on any bank, credit card or other financial statements or otherwise.
Client has the option to use free or paid services of PowerFlix. PowerFlix requests that Client input credit card information as a primary method of payment. Such card information may be saved by Client, but PowerFlix does not have access to such information, as the information is maintained by a PCI-compliant third party payment gateway. PowerFlix’s current payment gateway provider is Stripe, Inc.
Similar to payment information, Client has the the option to use free or paid services of PowerFlix. Certain services may result in positive royalties payable to Client. As such, PowerFlix requests that Client input bank information as a primary method of royalty payouts. Such bank information may be saved by Client, but PowerFlix does not have access to such information, as the information is maintained by a PCI-compliant third party payment gateway. PowerFlix’s current payment gateway provider is Stripe, Inc.
Content rules must adhere to PowerFlix’s general rules and guidelines, including technical specifications and parameters as listed on the service. Additionally, Content must be compliant and in-line with the rules and policies of consumer-facing platforms.
General charges and payments by Client to PowerFlix shall be billed and processed at the time of submission of a given paid service, whether as a one-time payment or recurring payment. At the sole discretion of PowerFlix, certain payments may be collected and credited by other means, including alternate forms of payment and/or charges collected outside of the primary PowerFlix service.
PowerFlix may contract or engage with third-party services, sell advertising space, link to social media sites or otherwise on the PowerFlix platform, which are not owned or controlled by PowerFlix. Use of any third-party integration is at your own risk and you indemnify PowerFlix and any and all third party affiliates from any liability associated therewith.
PowerFlix takes copyright infringement very seriously. IF YOU ARE THE OWNER OF ANY COPYRIGHTED MATERIAL OR SUSPECT THAT ANY MATERIAL IS INFRINGING ON YOUR RIGHTS CONTAINED IN THE COPYRIGHT ACT, you may Submit a notification pursuant to the Digital Millennium Copyright Act to [Insert Email Address], with the following information:
Identification of the copyrighted work or work which the holder of the copyright, their agent or otherwise is claiming to be infringed upon; and, how the alleged infringement is occuring (e.g, you are currently hosting [insert film name] (the “Film”) on PowerFlix, and I, my client or otherwise own the copyright, some portion of the copyright or the exclusive right to distribute the Film or some variation thereof).
Identification of the individual or their agent who wishes to be contacted with regard to the alleged infringement with contact information.
PowerFlix reserves the right to change this ToS Agreement from time to time. For example, when there are changes in our services, changes in our data protection practices, or changes in the law. When changes to the Tos are significant PowerFlix shall inform you.
For any California resident, if you have an issue with this ToS Agreement, please contact California Department of Consumer Affairs at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
TO THE EXTENT APPLICABLE TO YOU, YOU WAIVE CALIFORNIA CIVIL CODE §1542: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." WE WILL NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS STATEMENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WE WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR SIMILAR DAMAGES, THAT MAY RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE CONTENT, WHETHER THE CONTENT IS PROVIDED OR OTHERWISE SUPPLIED BY EITHER POWERFLIX OR ANY THIRD-PARTY AFFILIATES.