CITI BIKE PRODUCT PLACEMENT AGREEMENT
Date: August 15__________________, 2013
This following will serve as an agreement (the “Agreement”) between Citigroup Inc., a Delaware corporation located 399 Park Avenue New York, New York 10043 (“Citigroup”), and Columbia Pictures Industries, Inc. Sony Pictures Entertainment / Annie (“Company”) a Delaware [STATE OF INCORPORATION] corporation located at 10202 W. Washington Blvd., Culver City, CA 90232[ADDRESS] with respect to the potential placement of one or more bicycles (“Bicycles”) and station kiosks (station kiosks and Bicycles, collectively referenced as “Products”) (such Products as provided by Operator to Company) that are part of the community bike-sharing system known as “Citi Bike” (the “Program”) and operated by NYC Bike Share LLC (“Operator”), and on which Citigroup’s service marks Citi Bike and Citi BIKE with Arc Design (collectively “Marks”) appear, in connection with the proposed motion picture currently entitled “Annie” materials (the “PictureMaterials”) as fully described in the product placement form, attached hereto and made a part hereof as Exhibit A (“Mark Placement Form”), and as set forth below:
1. NATURE OF AGREEMENT: Company shall use commercially reasonable good faith efforts to place one or more visual identifications of the Products bearing the Marks (solely as embodied on the Products) in the Picturein the Materials as set forth on the Mark Placement Form.
2. GRANT OF RIGHTS: In exchange for the consideration set forth in this Agreement in the Mark Placement Form, and such other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Citigroup hereby grants to Company, its parents, subsidiaries, affiliates, agents, successors and assigns, the irrevocable non-exclusive, non-assignable, non-sublicensable, non-transferable, royalty-free right and license to use the Marks solely as embodied on the Products in the PictureMaterials and in and on all forms of exploitation of the Picture, including any advertising, promotion and publicity of the Picture (but excluding the exploitation of clips, merchandising and co-promotions) for use in any and allthe media, manner and content delivery mechanism or technology, whether now known or hereafter devised, throughout the universe in perpetuity and territory for the period set forth in the Mark Placement Form, and subject to any further limitations or restrictions set forth therein.
3. NO GUARANTEE OF PRODUCT INTEGRATION; USAGE OF PRODUCT AND MARKS: With respect to the usage of the Products and Marks (as embodied on the Products) hereunder, Citigroup and Company agree and understand that Company shall use commercially reasonable efforts to cause the Products and Marks towill be “visually identifiable” in the PictureMaterials in a manner approved by Citigroup in advance. Notwithstanding anything to the contrary, Citigroup acknowledges that Company shall have no obligation to use the Products (with the Marks embodied thereon) in the Picture, that Company retains sole and exclusive artistic and creative control of the Picture and that Company may decide, in Company’s sole discretion, to photograph or edit the Picture in such a manner that the Products (with the Marks embodied thereon) may not appear recognizably in the Picture as released, or that the Products may appear in a different manner than that presently contemplated, and that the Picture may be edited in such a manner that the Products (with the Marks embodied thereon) may not appear recognizably in the Picture due to applicable laws. All uses of the Products and Marks shall be reviewed and approved in accordance with the following:
A. Company agrees that the Products shall be depictedpresented in the Materials in the Picture in a manner consistent with the script (“Script”) s, storyboard or other information provided to, and approved by, Citigroup;. Company acknowledges that it has reviewed the Script and the potential scene (“Potential Scene”) (as set forth in Exhibit A attached hereto and made a part hereof) where the potential placement is contemplated to occur, and that the use of the Marks (as embodied on the Products) as contemplated in the Script and Potential Scene, or any substantially similar placement in the Picture, is approved and deemed non-disparaging to Citigroup, Products and the Marks, and complies with the Depiction Standards (defined below). any changes to the script, storyboard or other information provided to Citigroup without Citigroup’s prior written approval shall be grounds for revocation of any rights granted to Company with respect to the use of any Product or Marks. In furtherance of, but without limiting the forgoing, in addition to any rights under the Agreement, Company agrees to provide a copy of the Materials to Citigroup sufficiently in advance of its release date, but in no event later than ten (10) days prior to the release of the Materials for viewing by the general public, and shall not be used until Citigroup approves the Materials in advance.[Note to Citgroup: studio cannot provide you with footage for your preapproval. This is consistent with any product placement deal] Company shall not use or license the use of any Products for stock footage or in connection with audio visual works other than the Materials, and/or in any merchandising and/or commercial tie-in of any kind thereof, without the prior written consent of Citigroup in each instance[KT: they are not allowing us to use stills/footage which contains the Marks on the bikes/kiosks in any merch/co-promo/stills licensing/clip licensing].
B. Unless specifically permitted by Citigroup in writing, with respect to Company’s use of the Products in the Picture, Company shall not cause or permit any modification and/or alteration of the Products or Marks, including without limitation, any aspect of the features of the Products or the removal of any part thereof, including the tires, seat or Marks on the Products, without the prior written consent of Citigroup in each instance as it relates to the Marks on the Products and both Operator and Citigroup as it relates to the Products to the extent the Marks are not shown. In addition, Company shall not place or permit the placement of any third party decal, signage, service mark, trademark, logo or markings of any kind on or about the Products or the Marks, unless specifically permitted Citigroup in writing. [KT, does Production agree to this whole paragraph?]
C. Unless specifically permitted by Citigroup in writing, the Products shall at all times be shown as being used in a manner consistent with its intended purpose and in compliance with all applicable state and/or local laws, rules and regulations, and guidelines issued by any applicable municipality, state or media outlet on or through which the Materials may be displayed[Note to Citgroup: we do not know exactly what applicable laws are for use of bikes/kiosks]. In furtherance of and without limiting the foregoing, only one rider can be on any BicycleProduct at any one time, he or she is strongly encouraged to use a helmet approved for bicycle use, and must be at least of legal majority (and be over the age of 16) [KT: Annie is riding the bike, right? deleted because the Annie character is a child. Also, will helmets be worn by the talent?]. The Products cannot (a) be driven at high speeds or [Note to Citigroup: the bike will be ridden fast though, as scripted] with any wheels off the ground, weaving in and out of traffic, or being driven in an unsafe manner (b) be driven on any highway, or any type of roadway or terrains for which the Products was not intended to be used, or (c) with any towing or hauling of cargo (collectively “Depiction Standards”)[KT: does Productions agree to this entire paragraph?].
D. Company agrees that Citigroup, its products and services, the Products or Marks shall not be disparaged, distorted or presented in a manner that reflects unfavorably on Citigroup or the Products in any way in the Materials, including, without limitation, visually, by situation, or in the dialogue, as applicable. In furtherance of and without limiting the foregoing, the Products shall not (i) be depicted as causing in reference with an accident, (ii) be depicted as being damaged due to an accident, (iii) be used involved with any reference to driving while under the influence of alcohol, drugs or other illegal substance, (iv) be shown in any manner which may suggest poor performance or maintenance, or malfunction of the Product (e.g., being broken down, with a flat tire, with parts malfunctioning), (v) be used to in conduct connection with any unlawful activities, or (vi) be used in connection with any sexual activites or violent behavior, or (vii) be distorted, misrepresented or mischaracterized (sections (i) through (vi) hereinabove shall also be included in the definition of Depiction Standards).[KT; does Productions agree to these requirements]
4. DELIVERY OF PRODUCT: Citigroup’s only grant of rights hereunder is with respect to the Marks as shown on the Products. Company shall look solely to Operator and such other third parties with any rights or title in and to the Product to supply the Product and grant any other rights thereto, and those Product-related accessories (as applicable) as the Company may require, and any other requirements with respect to the Product and Company’s use as contemplated hereunder. Company acknowledges and agrees that Citigroup is not the operator of the bicycle sharing pProgram or the manufacturer or servicer of any of the Products, and. Company is solely responsible for and shall make any all payments that may be necessary to Operator and such third parties with respect to Company’s use thereof, and shall not have or make any claim against Citigroup or its affiliated entities with respect to the acts or omissions of Operator or such third parties in connection therewith. For the avoidance of doubt, Citigroup shall not be responsible for any payment to Company or any other third party in connection herewith.
5. RIGHTS TO MARKS: Company shall use the Products and the Marks consistent with the guidelines provided by Citigroup. [Note to Citigroup: we are simply using the bikes.. we are not using your marks out of context so not sure why any guidline would apply here] Except with respect to the grant of rights herein, Nnothing contained herein shall be construed as a grant or an assignment to Company of any ownership right, title and/or interest in or to the Marks, it being understood that all right, title and interest relating to the Marks is expressly retained by, and reserved to, Citigroup. Company acknowledges and agrees that its use of the Marks shall inure to the benefit of Citigroup and its affiliates. Citigroup shall have the sole right to initiate any action against third parties in defense of the Marks, and Company shall provide reasonable cooperation and assistance in connection therewith. Licensee shall notify Citigroup to the extent that it becomes aware of information suggesting the possibility of infringement or misuse of the Marks by third parties.
6. CONFIDENTIALITY: The parties agree that Tthis Agreement and all of its terms, and any information learned by Company with respect to the business Citigroup that is marked or should reasonably be understood to be confidential, shall be confidential, and each party Company agrees that, except as may be required by law, it shall not make any disclosures to any third party, other than its attorneys, advisors, directors, employees, agents, shareholders, accountants and affiliatesparent entities (each of whom shall be subject to the confidentiality provisions hereof) on a need-to-know basis, with regard thereto without the prior written approval of the other partyCitigroup.[KT: take notice]
7. PUBLICITY: Company and Citigroup its designees shall not have the right to issue press releases and otherwise publicize the appearance of the Products in the FilmMaterials and the fact that the Products werewas provided to Company in connection with the Picture without the other part’s prior written consent from Citigroup in each instance.[KT take notice]
8. REPRESENTATIONS AND WARRANTIES: Citigroup and Company hereby represent and warrant that each has the full right, power and authority to enter into this Agreement, to grant the rights granted by it herein and to perform itsthe obligations set forth hereunder. COMPANY ACKNOWLEDGES AND ACCEPTS THAT CITIGROUP SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND REGARDING THE MARKSPROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR QUIET ENJOYMENT AND IMPLIED WARRANTIES ARISING FROM THE COURSE OF DEALING OR COURSE OF PERFORMANCE.
9. LIMITATION OF LIABILITY: CITIGROUP WILL NOT BE LIABLE TO THE COMPANY (OR TO ANY PERSON OR ENTITY) FOR SUCH PARTY’S (OR SUCH PERSON’S OR ENTITY’S) DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, LOSSES OR COSTS ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT CITIGROUP, COMPANY OR SUCH PARTY HAS BEEN INFORMED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED, THE POSSIBILITY OF SUCH DAMAGES.
10. INDEMNITY: CitigroupCompany shall indemnify, defend and hold harmless CompanyCitigroup, its affiliated and subsidiary companies, and each of their respective officers, directors, agents, and employees, successors and assigns, from and against any and all losses, claims, actions, liability, judgments, expenses, costs, damages, actions or causes of action (including, without limitation, reasonable attorneys’ fees) arising out of or relating to Company’s use of the MarksProperty or Materials as contemplated hereunder, Company’s other actions or omissions related to the Program, or CitigroupCompany’s breach of any warranty, representation, obligation or covenant set forth hereunder, except to the extent a claim alleges that the authorized use of the Marks infringe third party rights.