Lay-Person Notes For Understanding The Filmmaker Agreement

Filmmaker Agreement

This Filmmaker Agreement ("Agreement") is between the filmmaker or film distributor, whichever is the case, (also referred to as "you" or "your") and Caachi, Inc., and its affiliates ("Caachi"). The following terms, in conjunction with the Terms of Use, govern your use of the Caachi website located at www.caachi.com (“Site”), your participation in showing your Film(s) (as that term is defined below) on and distributing your Film(s) via the Site (the "Services"), your delivery of Films and materials related to such Films to Caachi and your use of any Caachi software, including, without limitation, the software that constitutes the Site. [This Agreement covers the filmmaker or distributor's relationship with Caachi and use of Caachi materials.  Caach's Terms of Use also apply to you.]

To use the Services, you must:

• agree to the terms and conditions of this Agreement by checking the “agree” box on the Site or signing this Agreement and sending it to Caachi by fax at (415) 731-2845 or by mail to Caachi, Inc., 1387 18th Avenue, San Francisco, CA 94122; and
• register for an account at our Site by providing your real name, e-mail address and other necessary information.
  

[To partner with Caachi, first agree to this Agreement and register.]

Caachi reserve the right to change the terms and conditions contained in this Agreement or any policies or guidelines governing the Services, including without limitation, any of the information related to the Services or on our Site, at any time and in our sole discretion. Any changes will be effective upon posting of the revisions on the Site but no material terms of this Agreement materially affecting you shall be made without first notifying you. Moreover, Caachi will attempt to notify you via the email address you provided to us regarding other changes Caachi makes to the Agreement. You are responsible for reviewing the revised Agreement and any applicable changes. Changes to referenced policies and guidelines or any other information relating to the Services, or other Caachi web pages may be posted without notice to you. YOUR CONTINUED USE OF THIS SITE AND THE SERVICES FOLLOWING OUR POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS AGREEMENT, DO NOT CONTINUE TO USE THE SERVICES OR THIS SITE. [Main point here is that Caachi can change the terms of this Agreement but we must notify you before any changes that are important to you are made (for example, changes to the payment terms in section 4).]

1. Right to Participate. Your use of the Services is contingent upon Caachi's prior approval and your continued compliance with the terms of this Agreement and the Terms of Use. Caachi reserves the right to refuse participation to anyone at any time at its sole discretion. Multiple accounts held by the same individual or entity are subject to immediate termination unless expressly authorized in writing by Caachi (including by electronic mail). You are solely responsible for keeping your email address and other contact information updated. [To partner with Caachi, you need to abide by our terms in this Agreement and the Terms of Use.  We have the option to not work with any filmmaker (just as the filmmaker has the same right).  Filmmakers can't have multiple accounts unless they get Caachi's permission (because its causes database issues for us).]

2. Content. After you accept the terms of this Agreement, you designate Content for hosting, display (publication), streaming video, and downloading video to end-users by sending such Content, whether by mail or electronic means, to Caachi in accordance with the instructions set forth on the Site (“Publishing Instructions) and by providing additional information about your Content as requested by Caachi and required by the Site. “Content" means your video and audio works (“Films”), any short segments of content related to particular Films (if any), all available data relevant to a Film, audio and artwork for each Film, and any trademarks, trade names, service marks, logos, commercial symbols and other designations (collectively, "Marks") contained in any of the foregoing. For each Film you deliver to us, you will also deliver other materials constituting Content in accordance with the Publishing Instructions (which may be amended from time to time) or as requested by Caachi. [This section primarily says that the materials you send to Caachi will be on our servers and website and the films will be streamed to or downloaded by end-users.]

3. Curating Content; Pricing
3.1 Content Rejection and Removal
Caachi may, in our sole discretion, at any time (a) reject Content; and (b) remove, or refuse to list or distribute any Content. You may withdraw your Content from the Services at any time by written notice, and Caachi within a commercially reasonable amount of time will remove your Content after Caachi receives such notice. [Caachi has the right to reject any film submissions and remove a film from the website.  Likewise, you have the right to remove your film at any time.  Essentially, we're not contractually required to partner with each other for a fixed period of time. This is meant to provide the filmmaker flexibility].
3.2 Pricing; Legal Title
Caachi or our affiliate will be the seller of each digital copy of your Film (a “Unit) to a customer (each, a “Customer”). Caachi shall determine how and where it will sell the Film on your behalf.  You shall have sole discretion to determine the selling price of your Film for streaming or download. Caachi or our affiliate will hold legal title to each Unit created under this Agreement until title transfers to the Customer. [We'll sell your digitized film for download on your behalf. You decide the selling price (this provides the filmmaker more control over his/her film).  Legal title to the digitized copy remains with Caachi.  This does not affect your ownership rights in your film. You have complete ownership over your film.]

4. Fees, Refunds & Taxes
4.1 Fees
A sale of a Unit will be deemed to have taken place at the time that Caachi fulfills a Customer order for that Unit. “Fulfillment” occurs when a Customer pays (and Caachi receives the Selling Price) for the right to stream or download a Unit. For each Unit sold to a Customer through the Site, Caachi will pay you 75% of the Selling Price of the Unit. "Selling Price" means the actual amount received by us from a Customer for a Unit. Caachi shall send payment to you in the first week of each month based on Caachi processes (usually by electronic funds transfer or a check) provided that the amount owed to you is $25 or greater. Funds owed to you that are less than $25 will carry over to the following months until paid. You agree to provide the information Caachi requests to enable Caachi to make payments, if applicable, to you.  If you have amounts payable hereunder upon the termination of this Agreement, Caachi will provide your payment to you within 30 days after the termination date.  Payments made outside the United States require payment to be made via Paypal. For those international payments or payments requested to be made through Paypal, you acknowledge that Caachi may deduct the 2% Paypal surcharge in making payments via Paypal to your Paypal account. Moreover, if a Unit is sold through Caachi's affiliate program, you will receive 75% of the Selling Prices less the percentage of the Selling Price that is given to the affiliate for that particular Unit sold through the affiliate program. You may opt out of the Affiliate Program by providing notice to Caachi of such desire. [Caachi will pay the filmmaker royalties of 75% of the sales price for each downloaded film.  Caachi sends royalties during the first week of each month if your royalties are greater than $25.  If they are not, then the royalties are carried over to the next month's pay period.  We'll send royalties to your bank account by electronic funds transfer if you have a US bank account.  If you do not or want to be paid through Paypal, we'll pass-on the 2% Paypal surcharge for using Paypal. Therefore, you're revenue share is 73% if Paypal is used. Lastly, the last sentence states that if your film is sold through an affiliate website, your percentage is reduced by the percentage that would be going to the affiliate for only sales initiated from that website. So, if a website advertised your film and a viewer clicked on the ad to come to Caachi and purchased your film, for that particular sale your royalty rate would be reduced to 55% or 53% since currently the affiliate royalty rate is 20% of the film's download price.]
4.2 Refunds and Bad Debt
Caachi will be entitled to an adjustment to payments made to you for Customer returns and credits accepted or issued by us in our sole discretion with respect to Units and for any Selling Price ultimately not collected because of fraudulent credit card use or bad credit, in an amount equal to the payment otherwise payable to you in connection with such purchase. [We will not pay royalties for fraudulent credit card payments since we won't have that money because the credit card company will cancel that payment.  Also, if there is a refund to a customer, then we will not pay a royalty for that refund. Note, that Caachi's policy is to NOT provide refunds to customers generally but it may be necessary at times depending on the circumstances and especially to build a large customer base for the future for both the filmmaker and Caachi's benefit.]
4.3 Taxes
You will be responsible for determining taxes you owe on payments you receive under this Agreement. To the extent your payments are subject to any Transaction Taxes (as defined below), (a) payment includes all applicable Transaction Taxes, and (b) you may supply us with a valid tax invoice separately stating such Transaction Taxes. In return, Caachi will provide you with any applicable exemption certificate acceptable to the relevant taxing authority that Caachi possesses, in which case you will not collect the Transaction Taxes covered by such certificate. If any other taxes (for example, international withholding taxes) are required to be withheld on any payment, Caachi will deduct such taxes from the amount otherwise owed and pay them to the appropriate taxing authority. The term “Transaction Taxes” means sales/use, value added, or transaction taxes and other charges such as duties, customs and government imposed surcharges. [You are responsible for your tax payments for your own income.  Also, tax payments incurred from international transactions may be deducted from your royalty amount. As of now, we are not aware of such taxes so its not an issue and we currently don't reduce royalties going to filmmakers for any international taxes.]

5. Licenses
5.1 Use of Content.
In accepting this Agreement and submitting Content to Caachi, you are directing and authorizing Caachi and granting Caachi a royalty-free, perpetual (for purposes of section 13(b) hereof), non-exclusive right and license to, host, cache, route, transmit, store, copy, distribute, license, perform, display, reformat, excerpt, analyze, and create algorithms based on the Content to (i) host the Content on Caachi's servers and on other computers, (ii) index the Content; and (iii) display and allow for streaming or downloading the Content, in whole or in part in the territory(ies), in connection with Caachi products and services now existing or hereafter developed, including, without limitation, in products developed for syndication.  If syndication occurs, your rights in section 4 shall remain unchanged or be amended only after mutual agreement between you and Caachi. You also grant to Caachi the right to copy, excerpt, distribute, sell and display Content via streaming and progressive downloading, peer-to-peer or other technologies as appropriate, and to display Content for no fee or for a fee to the end-user (for clarification, if you are selling your Films on the Site, Caachi will sell the film at your designated price).  You agree Caachi may, without limitation, (a) permit Customers to stream or download multiple copies of Units for simultaneous use on multiple devices, and (b) permit Customers who have purchased your Units during the term of this Agreement to re-stream or re-download them, from time to time, both during and after the term of this Agreement. You further agree that Caachi or its affiliate may elect, in its sole discretion, to either utilize or NOT utilize third-party digital rights management software (“DRM”) in connection with all purchases of your Units on the Site. In the event any DRM is used in connection with your Units, you acknowledge that neither Caachi does not have the ability to control any such DRM, does not make any representations as to the efficacy of any such DRM, and cannot and shall not be responsible for any failure of any such DRM, including, without limitation, any failure of such DRM to enforce the content usage rules described on the Site.  Moreover, Caachi is not responsible for any loss, theft or damage of any kind to the Content. [Caachi is getting a license to offer your film for download during the time you're offering the film through Caachi and to those who have bought your film through Caachi. Please note that a license is a limited right, which is not equal to ownership. You own your film rights still.  We reiterate our position stated in the paragraph before section 1 that we'll contact you before changing important terms such as syndicating your film.  There's no DRM (i.e., digital rights management) but we have incorporate DRM later.]
5.2 Promotional License, Attribution and Marks, and Publicity.
You hereby grant Caachi a non-exclusive, world-wide, perpetual, irrevocable, royalty-free license to use your name and logo ("Attribution and Marks"), in connection with Content, and to use limited excerpts from Content for advertising or promotional purposes, including without limitation the right to publicly display, perform, reproduce and distribute such excerpts and brand features on the Internet and in presentations, marketing materials, customer lists, financial reports and Caachi site listings of customers. Caachi also reserves the right to display advertisements in connection with any display of Content. If this Agreement is terminated, Caachi may continue to use such excerpts and Attribution and Marks in materials that are in existence as of the date of termination until such materials are depleted or are redesigned, whichever comes first. [Caachi has the right to market the film and its materials for purposes of promoting it on and off of the Caachi website.]

6. Ownership; Representations & Warranties.
6.1 Ownership.
Subject to the licenses set forth in this Agreement and the following sentence, and as between the parties, you own or have obtained the necessary license(s) to all right, title and interest in and to the Content, including all patent, copyright, trademark, service mark, mask work, trade secret or other intellectual property or proprietary right therein (collectively, “Intellectual Property Rights”) that is to be licensed to Caachi pursuant to this Agreement. Subject to your underlying rights in the Content, Caachi will own all right, title and interest in and to the templates and other materials created, provided or used by us in fulfilling our obligations in this Agreement including all Intellectual Property Rights therein. [You own all ownership rights to the film and its materials or have obtained the necessary licenses for the film and materials you will be licensing to Caachi. Caachi owns materials related to the film but that right is subject to your ownership rights, meaning that your ownership rights trump Caachi's ownership rights with respect to the film.]
6.2 Representations.
You must have the right to use all of the images, music and data included in any Content, and you must have the right to grant the licenses in this Agreement. By accepting this Agreement and licensing Content, you represent and warrant to Caachi the following: (a) you are at least 18 years of age, (b) all of the information provided by you to Caachi to use the Services is correct and current (including without limitation information you provide to Caachi on the Site or in documentation); (c) the Content is not, in whole or in part, pornographic (d) you hold and will continue to hold the necessary rights, whether through ownership or the necessary licenses, including but not limited to all copyrights, trademark rights and rights of publicity in and to Content and your Attribution and Marks to enter into this Agreement and to grant the rights granted herein; (e) you have the legal right and authority to enter into this Agreement, to perform the acts required of you under the Agreement, and to grant the rights and licenses described in this Agreement. You further represent and warrant that the Content and the rights and licenses granted to Caachi under this Agreement (including the public display, public performance, distribution and reproduction of Content): (i) do not and will not violate any applicable law, statute, ordinance or regulation and (ii) do not breach and will not breach any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort or contract theories. [You're representing to us that you are: 18 years old or older; that the film is not pornographic; and you have rights in your film to partner with us in accordance with this Agreement.]

7. DMCA Compliance. By executing this Agreement, you understand and agree that Caachi is in compliance with all terms of the Digital Millennium Copyright Act of 1998 (the "DMCA"), 17 U.S.C. §512 et seq. Caachi shall have the right, as per §512 of the DMCA, with appropriate notice to remove, take down or otherwise disable Content that is claimed to be infringing, irrespective of whether Content is ultimately determined to be infringing. You agree that Caachi shall be in compliance with §512 (c) (2) of the DMCA by sending written notice to your last known email or, if given to Caachi, U.S. mailing address, detailing the alleged infringement. Upon notice, Caachi shall have the right to remove Content. [If someone claims that your film is really owned by that person, then we'll investigate and notify you of that person's claim.  We'll then determine whether to take the film down depending on what your stance and the other person's claim is.]

8. Services and Site. You may use the Services and Site for the sole purpose of providing Content to Caachi and allowing Caachi to distribute such Content. You must immediately notify Caachi of any known unauthorized use of the Services and Site. You may not use the Services and Site for any other reason, including but not limited to (i) modifying, adapting, translating, or reverse engineering any portion of the Services or Site; (ii) attempting to break security, access, tamper with or use any unauthorized areas of the Services or Site; (iii) removing any copyright, trademark or other proprietary rights notices contained in or on the Services or Site; (iv) attempting to collect or maintain any information about other users of the Services or Site or other third parties for unauthorized purposes; (v) transmitting any viruses, worms, defects, Trojan horses or other malicious code or items of a destructive nature; or (vi) using the Services and Site for any unlawful, harassing, abusive, criminal or fraudulent purpose. [You agree to abide by Caachi's rules when partnering with us.  Also, we're asking you to not tamper with our software, put viruses into our films, etc.  Yes, we know, its outrageous for us to ask for that.]

9. Privacy and Information Rights. Your use of the Services indicates your agreement with Caachi's Privacy Policy, which is incorporated into this Agreement. In accordance with the Privacy Policy, Caachi may use information that you provide to Caachi when you register for the Service in accordance with the Privacy Policy. In addition, it might be necessary for Caachi to transfer and disclose your information, including personally identifiable information, to third parties to enable and approve your participation in and use of the Services. This may include third parties residing in jurisdictions with less restrictive data regulations than those in your state or country of residence. You also agree that Caachi may disclose your information in response to valid legal processes, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Caachi disclaims all responsibility, and will not be liable to you, however, for any disclosure of that information by any such third party. [Caachi's Privacy Policy applies to you as it applies to all those who use Caachi's website.  Also, we will only disclose information when necessary to ensure that you receive our services or when Caachi is legally required to disclose (e.g., by court subpoena).

10. Confidentiality. You agree not to disclose Caachi Confidential Information without Caachi's prior written consent. "Caachi Confidential Information" includes without limitation: (i) all Caachi software, technology, programming, technical specifications, materials, guidelines and documentation relating to the Services; (ii) any advertising pricing or rates, financial information, business information, including operations, planning, marketing interests, products, and any other reporting information (including revenues, if any, received by you from Caachi) provided by Caachi; and (iii) any other information designated in writing by Caachi as "Confidential" or an equivalent designation or that would otherwise be reasonably considered confidential or proprietary under the circumstances. [Don't disclose Caachi confidential information.]

11. Disclaimer and Limitation of Liability. THE SERVICES AND SITE ARE PROVIDED "AS IS" WITH NO WARRANTIES WHATSOEVER. CAACHI EXPRESSLY DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, AND PERFORMANCE OF THE SITE AND SERVICES AND THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. EXCEPT FOR ANY PAYMENT OBLIGATIONS SET FORTH HEREIN, IN NO EVENT SHALL CAACHI BE LIABLE UNDER THIS AGREEMENT FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF CAACHI HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICES AND SITE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR CONTENT, AND FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM USE OF THE SITE OR SERVICES. [We're disclaiming all warranties so our service is provided "as is."  If we're not holding up our part of the partnership, you can walk away at any time.  We don't want that so there's motivation on our side to keep you happy.]
    
12. Indemnification. You agree to indemnify, defend and hold Caachi and its respective directors, officers, employees, and applicable third parties (e.g., relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively "Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss and expense (including reasonable legal fees, damage awards, and settlement amounts) brought against any Indemnified Person(s) arising out of, or related to or which may arise from Content, your Attribution and Marks, your use of the Services and Site, and/or your breach of any term of this Agreement. Caachi may join in defense with counsel of its choice at its own expense. [If Caachi gets sued by another person because we are showing their film that you provided to us, then you promise to defend us and indemnify us for costs incurred by Caachi to address this other person's legal claim.]

13. Termination; Withdrawal of Content.
(a) You may terminate this Agreement for convenience upon written notice to Caachi. You may withdraw Content from public display to preclude future sales of Units by providing Caachi with a written request. After receiving such request or a termination notice, Caachi will remove Content from public display within a commercially reasonable period of time. Caachi may at any time, in its sole discretion, terminate the Services, terminate this Agreement, or withdraw any Content from the Services. [Both Caachi and you can terminate this Agreement and end our partnership.]
(b) Upon termination, for purposes of allowing a user who has paid for your Content to stream or download your film: (i) Caachi may fulfill any Customer orders pending as of the date of termination; and (ii) Caachi may continue to maintain digital copies of your Content to provide "refresh" Units or otherwise support Customers who have purchased a Unit prior to termination.  [To clarify further, Users will have an account that always maintains a list of Units that the user has paid for or legally obtained for free. Users may access this account so long as the user utilizes Caachi's services since the user has paid for such Content or legally obtained for free.  Therefore, Caachi may exercise the rights in this Section 13(b) when a user, who has paid for a Unit or has previously legally obtained a free Unit, needs to stream or download a film again (e.g., user's computer where the downloaded film resided crashes or is stolen).  Aside from Caachi's right to offer such refresh Units as stated in this Section 13(b), Caachi shall not distribute Units of your film to any other users after either party terminates this Agreement pursuant to Section 13(a).] [When either one of us terminates the partnership, Caachi has the right to let users who purchased your film prior to the termination date to re-download the film at any time. So this means that the film won't be publicly available to new users but will be accessible to former purchasers in their private accounts maintained by Caachi. We do this as a convenience to former purchasers but we do not anticipate it being utilized often by those users since it takes time to download a film.  Only when the user loses his/her copy of the film do we foresee the user wanting to re-download the film.]

14. Proprietary Rights. You acknowledge that as between you and Caachi, Caachi owns all right, title and interest in and to the Services and the Site and portions thereof, including without limitation, all intellectual property rights. [Caachi owns its property comprised of its services and the website.]

15. Geo-filtering. Caachi may limit the sale of a Film(s) based on IP addresses within a geographic region(s) provided that you give Caachi written notice of such intention and Caachi accepts your request. Your notice should clearly state the geographic location(s) to which the sales of a Film(s) is to be limited. You agree that Caachi's ability and hence obligation to limit Film sales based on IP addresses as stated in this Section 15 to certain geographic locations: (i) may be circumvented by third party actions (such as IP address spoofing), and (ii) will be subject to the degree of completeness and/or accuracy of the IP address databases, which are aggregated by third parties, that Caachi uses. [This provision only applies if you are limiting the sales of your films to designated geographic locations (e.g., sales only to North America).]

16. General. [The following are general provisions, which will not be individually summarized.]
16.1. Notices. Unless otherwise stated in this Agreement, all notices or other communications or deliveries required or permitted to be made under this Agreement shall be sent (a) to you at the email address in your account or provided upon your registration for the Services and for use of the Site; (b) if to Caachi, to our address as provided on our Contact page or as otherwise provided in writing for such notice purposes. You shall provide in writing the most current contact information to Caachi and keep such information continually updated.
16.2. Assignment. You may not resell, assign or transfer any of your rights hereunder.
16.3. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and remain enforceable between the parties.
16.4. Governing Law. This Agreement shall be governed by the laws of the State of California, without regard to its principles of conflicts of law. The parties agree that venue shall be proper in, and consent to the personal jurisdiction of, any state or federal court of competent jurisdiction in San Francisco county, California. The parties agree United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act does not apply to this Agreement. The provisions of Sections 5, 6, and 9 - 16 shall survive any expiration or termination of this Agreement.
16.5. Independent Contractors. The relationship between Caachi and you is not one of a legal partnership relationship, but is one of independent contractors. The words "you" or "your" shall also mean your heirs, executors, administrators, successors, legal representatives and permitted assigns. This Agreement does not affect any right that either party would have had, or shall have, independent of the Agreement including rights relating to Content under applicable law, including but not limited to copyright law.
16.6. Waiver. The failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches.
16.7. Force Majeure. Neither party shall be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet or other network disturbances.
16.8. Entire Agreement. This Agreement and its exhibits, if any, are the complete and exclusive agreement between the parties with respect to the subject matter contemplated by this Agreement, superseding and replacing any and all prior or contemporaneous agreements, communications, and understandings, both oral and written, regarding that subject matter.