Each Participant (as defined below) completing a Registration Application for, and/or attending, the American Film Market (“AFM”) agrees, for itself and for all of the employees and other representatives of the Participant and their invitees, to abide and be bound by all rules and regulations, AFM Guidelines and written instructions of the AFM (sometimes collectively and individually referred to as the "AFM Market Rules"), and in particular the following:
- Neither the Participant nor any of its employees or other representatives, or their invitees, shall engage in any activity as an agent, licensor, distributor or otherwise related to the sale or licensing of motion pictures within the AFM, except that those Participants who have registered and paid their fees as an Exhibitor or Sponsor may participate in the AFM as Exhibitors.
- Each individual attending the AFM as a Buyer must meet the following criteria:
- An employee of a company which has contracted with one (1) or more IFTA Members for such company to actually distribute in at least one (1) audio-visual medium a total of at least three (3) motion pictures during the three (3) years immediately before the AFM; or
- An employee of a company which has contracted with one (1) or more IFTA Members for such company to actually sub-distribute (i.e. re-license) in at least one (1) audio-visual medium a total of at least three (3) motion pictures during the three (3) years immediately before the AFM.
Counterfeit badges are absolutely prohibited. If any individual is found wearing a counterfeit badge, AFM Security will escort that person off the restricted office floor and confiscate the badge. Any Participant found to have produced, distributed, authorized or in any other way participated in the use of counterfeit badges will be subject to fines or other sanctions, including but not limited to barring from future American Film Markets. In addition, the AFM may refer such individuals and organizations to law enforcement authorities.
SECTION ONE: GENERAL INFORMATION
A. Notice to Participants
The American Film Market ("AFM") is owned and operated by the Independent Film & Television Alliance ("IFTA"), a non-profit trade association registered in the State of California. Neither the AFM nor IFTA is responsible for the activities, performance or failure to perform of any of its Member companies, Exhibitors, Buyers, Industry Attendees, Sponsors, Affiliates or any other party who may participate at the AFM or who may otherwise utilize the facilities or services of the AFM or IFTA (the "Participant" or "Participants"); nor are they liable for the actions, inactions or negligence of suppliers, utilities, vendors, screening theaters, hotels, transportation and other facilities and/or parties; nor for force majeure events including without limitation, strikes, work stoppage, war or military activities, civil disorders, criminal conduct of others, weather, fire, earthquakes, acts of God or any other events beyond IFTA or AFM's control. All AFM Participants shall indemnify and hold harmless IFTA, its Members, officers, directors, employees and agents of each of the foregoing from and against any and all claims, damages and liabilities (including reasonable attorney's fees) relating to or arising out of any breach or alleged breach of their agreements or alleged agreements with third parties.
All Participants shall be responsible for their costs and fees associated with participating in the AFM, including but not limited to, all fees associated with Exhibitor, Buyer, and Industry Attendee registration and participation, sponsorships, screening fees, costs associated with any type of badges, equipment and furniture rental fees, and any other costs or fees assessed in association with participating at the AFM. All Participants shall indemnify and hold harmless IFTA, its Members, officers, directors, employees and agents of each of the foregoing from and against any and all claims, damages and liabilities (including reasonable attorney's fees) relating to or arising out of any request by a Participant for IFTA’s assistance with a Participant’s personal property or rented equipment, including transporting such property or equipment.
Each Participant expressly consents to receive via facsimile, e-mail or any other means, information or materials from the AFM, IFTA or the IFTA Foundation. Participant may withdraw this consent at any time by notifying IFTA in writing.
B. Maintaining the Integrity of the AFM
IFTA has developed guidelines as well as other rules, regulations and written instructions, such as the AFM Guidelines, (sometimes collectively and individually referred to as the “AFM Market Rules”) for all Participants. Each Participant and all of its employees, agents, consultants and guests, shall abide and be legally bound by the AFM Market Rules. Failure to do so may result in revocation of previously granted badges and/or prohibition of the Participant and its Affiliates from participating at future AFM(s). As the owner and operator of the AFM, IFTA has the right in its sole discretion to apply and interpret the AFM Market Rules. In the event of such revocation, IFTA shall have the absolute right to prohibit entry to the AFM, including the company's exhibition space. Also, in such event, the Participant shall not be entitled to a refund or rebate of any fees previously paid to the AFM or to IFTA, nor shall the AFM or IFTA be responsible in any way for any of the costs which the Participant may have incurred in connection with, preparation for, or attendance at the AFM.
IFTA reserves the right to revoke previously granted badges and/or prohibit a company, its Affiliates, all its employees, and/or an individual from participating in a current or future AFM(s) for, including but not limited to, the following reasons: (1) Participants who breach the safety and security of the AFM, which includes, but is not limited to, threats to other Participants, AFM staff, Hotel staff, or any Person whatsoever, carrying of weapons, or violations of general security concerns at the AFM; (2) Participants who have been convicted of criminal copyright infringements; (3) Participants who have infringed the intellectual property rights of IFTA or the AFM, including but not limited to, unauthorized use of IFTA’s registered trademarks or copyrights; (4) Participants who violate any Terms of Use found on the IFTA or AFM website; (5) Participants who have outstanding unpaid invoices from a prior AFM(s); (6) Participants who have been barred pursuant to Section Three B. below; (7) Participants who do business on behalf of Non-Prevailing Parties and/or Related Entities that have been barred pursuant to Section Three B. below; and/or (8) Any other act which IFTA determines, in its sole discretion, may compromise the integrity of the AFM.
C. Badges
Badges must be worn at all times for the duration of the AFM. AFM Security will prevent individuals without an AFM Badge from gaining access to the Exhibitor floors. If any Participant wears a badge other than his or her own, AFM Security will confiscate the badge. Confiscated badges will not be returned. Fines or other sanctions may be imposed.
No AFM Badge is required for children in strollers who are accompanied by an adult Participant who has his or her own AFM Badge. Participants under the age of fifteen (15) years old will be provided with a complimentary AFM Badge and must be accompanied at all times by an adult Participant who has his or her own AFM Badge. Participants sixteen (16) years old and older must purchase an AFM Attendee Badge.
Lost or stolen Photo Badges must be reported to AFM Security and there may be a 24-hour waiting period before a new badge is issued. IFTA reserves the right to not issue a replacement badge. There are no replacements for Day Badges or Visitor Badges.
Any Person found to have produced, distributed, authorized or in any other way participated in the use of counterfeit badges will be subject to fines or other sanctions, including prohibiting such company, its Affiliates, all its employees, and/or an individual from participating in a current or future AFM(s).
D. Temporary Office Space
A Participant, with or without an AFM office, may not retain temporary office space (one month or less) in the City of Santa Monica. AFM reserves the right to rescind all rights and privileges of exhibition at this and future AFM(s) in the event of such occurrence.
SECTION TWO: EXHIBITION AGREEMENT GUIDELINES
A. Eligibility to Exhibit
To exhibit at the AFM, a company must be actively engaged in the business of licensing or representing the licensing of theatrical motion pictures, television and/or video programs to licensees engaged in distribution of such pictures and/or programs.
The AFM has provisions which allow non-U.S. based trade associations or government supported organizations to exhibit under a group policy (National Umbrella Program). There are also provisions which allow a company to participate at the AFM without an office. In both cases, the policies are different from those indicated in Section Two of these Guidelines.
Companies that do not meet the above qualifications, but offer a service or product related to the entertainment industry, may apply to participate as a Sponsor or Affiliate. Contact the AFM Marketing Department for further information.
B. Office Allocation
For a company to participate in the first round of office assignments, the AFM 2008 Office Request Form & Exhibition Agreement along with a $2,000 non-refundable deposit must be received by Friday, 13 June. Any Exhibitor from the prior AFM requesting space after this date will automatically lose office allocation priority and will be allocated an office only if space is available and these requests will be addressed in order of the date the request is received.
IFTA reserves the right to allocate offices, and to modify or change an Exhibitor’s office location and/or configuration relative to the needs of the AFM as solely determined by IFTA.
Office assignments will be confirmed via email by Thursday, 19 June. It is the Exhibitor’s responsibility to contact the AFM if office confirmation is not received by Friday, June 20. Any Exhibitor that rejects an office assignment must respond in writing by Friday, 27 June. If a written response is not received, the AFM will consider the office assignment approved.
C. Office Sharing
Two (2) Exhibitors may share a one (1) room regular office (codes A-F) or meeting room (codes W-Y). Office sharing is limited to two (2) Exhibitors per office. The First Exhibitor (the Exhibitor assigned the office space) is responsible for its own Exhibition Fee and the entire cost of the office. The Second Exhibitor will submit an Exhibition Agreement and pay a share fee to the AFM ($3,500 for non-IFTA Members; $2,000 for IFTA Members). If an office is shared without prior approval, IFTA may, at its sole discretion, close the office and revoke all badges allocated to all companies in the office. In such case, each Exhibitor will forfeit all prior payments to the AFM. Contact the Manager of AFM Exhibitor Services for additional information on Office Sharing.
D. Subsidiaries
An Exhibitor may list a brand or label (“Subsidiary”) at no charge, provided the Exhibitor owns 50% or more of the Subsidiary. The Subsidiary will have no other additional benefits (i.e., no free badges). The Subsidiary may be listed with the Exhibitor or separately. If the Exhibitor does not own 50% or more of the Subsidiary, then Office Sharing Guidelines, set forth in Section Two C above, will apply.
E. Eligibility to Screen Films in AFM Theatres
To screen films in AFM theatres, the Office Request Form & Exhibition Agreement must be received by Friday, 13 June. Companies that do not request offices by 13 June will not be permitted to screen films. Companies that register to share an office or participate with a National Umbrella Organization must submit their Exhibition Agreement by 27 June to be eligible. Companies that exhibit without an office are not eligible to screen films.
F. Payment, Cancellations and Refunds
All payments must be in U.S. dollars and made by check (drawn on a U.S. bank), U.S. dollar Travelers Check, credit card (American Express, VISA, or MasterCard) or bank wire transfer.
A returned check or credit card authorization refusal may, at IFTA’s sole discretion, result in a loss of office priority allocation, or the ability to exhibit at the AFM. In such instances, IFTA may require payments by Cashier's Check. A U.S. $100 service charge will be assessed for each returned check.
If any fees or deposits are paid by a third-party, it is understood and agreed that the Exhibitor is ultimately responsible for payment of charges and that IFTA has the right to confirm the identification of any third-party payer and its relationship to the Exhibitor. The Exhibitor shall indemnify IFTA for any losses suffered in connection with the third-party's payment, failure to pay or any actions IFTA undertakes in order to recover payment. IFTA reserves the right to institute collection procedures against the Exhibitor and/or the third-party if the third-party does not pay. IFTA reserves the right to prohibit any Participant from future AFMs for failure to pay an invoice. By making a payment to the AFM, the third-party, and where applicable, its employees and other representatives, agrees to fully comply with the AFM Market Rules.
All orders must be submitted on the appropriate form and accompanied by payment in full. Forms received without payment will not be processed. Changes and cancellations must also be submitted in writing by the appropriate deadlines.
All fees must be paid in full prior to the AFM. Exhibitors with outstanding balances will not be allowed office access. Any monies due to Exhibitor from the AFM will be refunded by Friday, 9 January 2009. Credit due from any cancelled or unfulfilled orders may not be applied to other AFM orders or fees.
G. Badge Eligibility and Restrictions
An AFM Badge allows access to most screenings but does not guarantee access to every screening. Exhibitors may provide badges to business colleagues, including employees, consultants, producers, etc. Exhibiting companies that have been “Accredited” as an AFM Buyer may request a Buyer Badge for any full-time employee. However, Exhibitors may not provide badges to Buyers from other companies. In such instances, the Exhibitor’s badges may be revoked and the Exhibitor may be prohibited from attending future AFMs. Exhibitors with a National Umbrella Program may provide badges to full-time employees only.
H. Product
No pornographic or "hard core" films may be screened at AFM theaters, shown in offices or otherwise promoted at the AFM. However, such films may be screened or shown in AFM offices if they have been edited for U.S. pay cable standards (i.e. if they would meet (or have met) the standards for HBO or Showtime's adult programming). An Exhibitor that screens in violation of this AFM Market Rule may have its badges revoked and may be prohibited from attending future AFMs.
SECTION THREE: ARBITRATION
A. GENERAL
Section Three of the AFM Guidelines outlines IFTA’s rules regarding Independent Film & Television Alliance Arbitration ("IFTA Arbitration") as it relates to participation at the annual AFM. Any reference to IFTA Arbitration or the Independent Film & Television Alliance Rules for International Arbitration (“IFTA Arbitration Rules”) in these AFM Guidelines shall include those arbitrations conducted under the IFTA Arbitration Rules and/or American Film Marketing Association Rules and/or AFMA Rules, where the matter in controversy relates to an agreement relating to the distribution and/or financing of one or more motion pictures or television programs in a territory other than the home territory of the licensor. IFTA encourages the use of arbitration to resolve disputes between parties in the entertainment industry through the IFTA created and operated Arbitration Tribunal. Neither IFTA nor the AFM is responsible for the outcome or decision of any such arbitration.
A company may, but is not required to, utilize the IFTA Arbitration Rules by incorporating into its license agreements a dispute resolution provision relying on the IFTA Arbitration Rules. Any company interested in the IFTA Arbitration Rules may obtain a copy by contacting IFTA or visiting its website at www.ifta-online.org.
IFTA's Board of Directors has established the AFM as a forum to facilitate the international licensing of films and television programs and to provide a benefit to IFTA's Members, as well as non-IFTA Members. To ensure the integrity of the AFM, IFTA has developed the following procedures for barring attendance at the AFM. Section Three of the AFM Guidelines applies to arbitrations conducted under the IFTA Arbitration Rules, including any arbitrations conducted under any prior name, including AFMA Arbitration and American Film Marketing Association Arbitration, where the matter in controversy relates to an agreement relating to the distribution and/or financing of one or more motion pictures or television programs in a territory other than the home territory of the licensor. Under this section, a Non-Prevailing Party failing to satisfy a confirmed IFTA Arbitration award, or any Related Entity thereto, may be barred from attending up to two (2) AFMs. Any Participant who conducts business on behalf of a barred Non-Prevailing Party or Related Entity may also be barred from attending up to two (2) AFMs. A Person may also be barred from the AFM under this section if it has outstanding financial obligations to IFTA or IFTA Arbitrators.
B. BARRING FROM ATTENDANCE AT AFM FOR FAILURE TO SATISFY
AN IFTA ARBITRATION AWARD
1. Definitions:
1.1 "Affiliate" means an entity owned or controlled by another company or which entity is owned or controlled by an Affiliate of another company. For purposes of this definition, "owned by" means ownership of shares of stock or other evidence of ownership in an amount exceeding 50%. "Controlled by" means that one company has the authority to determine the business decisions of another entity.
1.2 "IFTA Arbitration" means an arbitration conducted pursuant to the IFTA Rules for International Arbitration, the AFMA Rules for International Arbitration and/or the American Film Marketing Association Rules for International Arbitration and administered by the IFTA Arbitration Tribunal or its predecessors, AFMA Arbitration Tribunal and American Film Marketing Association Arbitration Tribunal, where the matter in controversy relates to an agreement relating to the distribution and/or financing of one or more motion picture or television programs in a territory other than the home territory of the licensor, provided that each party or its Affiliate was a party to the agreement in dispute or agreed in writing to be bound by the arbitration provisions in the agreement in dispute as they relate to these AFM Guidelines; or if it was not a party to the agreement in dispute or so agreed to be bound, then it was assigned such agreement or the right to bring or defend the arbitration, or found to be legally bound by such agreement by a court of competent jurisdiction, and also in such event: (i) was at the time such agreement was entered into a real party in interest or a beneficiary thereto; or (ii) the owner, distributor, sales agent, licensor or licensee of, or held other rights in, or was an Affiliate of, a party holding such other rights in the motion picture, television program, or other property which is the subject of such agreement; or (iii) was the producer, financier, or distributor or an Affiliate of the producer, financier, or distributor of the motion picture, television program or other property which is the subject of such agreement.
1.3 "Buyer" means a Person who registered and attended as a designated "Buyer" at an AFM that occurred no more than three (3) years prior to the commencement of the IFTA Arbitration.
1.4 "Confirmed Award" means an IFTA Arbitration award issued by an arbitrator that has been reduced to a final judgment, such that no further appeal is available to any Non-Prevailing Party or Prevailing Party by a court of competent jurisdiction, or otherwise finally adjudicated as a civil judgment in any country that recognizes foreign judgments or arbitral awards.
1.5 "Due Notice" means a written statement demanding satisfaction of the Confirmed Award sent by certified or registered mail, courier, telex, facsimile or email to the address, facsimile number or email address shown for the Non-Prevailing Party in the parties' agreement or to any address which the Prevailing Party has been informed by the Non-Prevailing Party or Related Entity or which is known to be the last known place of business, habitual residence, mailing address, facsimile number or email address of the Non-Prevailing Party or Related Entity. If the sender has reasonable grounds to believe that such Notice will not reach the recipient Non-Prevailing Party or Related Entity, then Due Notice also shall require publication of the Notice for three (3) consecutive days in a newspaper of general circulation in the community where the recipient lives or maintains its offices, and in an international trade paper of general circulation in the country where the recipient is domiciled. The written statement must be in the native language of the recipient, or the language in which negotiations regarding the subject matter of the IFTA Arbitration were conducted.
1.6 "Exhibitor" means a Person who registered and attended as a designated "Exhibitor" an AFM that occurred no more than three (3) years prior to the commencement of the applicable IFTA Arbitration.
1.7 "IFTA Arbitrator" means a Person who has served as an arbitrator in an IFTA Arbitration.
1.8 "Non-Prevailing Party" means any Person who was a party to an IFTA Arbitration against whom the arbitrator rendered an IFTA Arbitration award or any Person who was the assignee or successor to the rights of such Person under an agreement described in Paragraph 1.2 of this Section Three B. or any Person against whom a court has rendered a Confirmed Award based upon an underlying IFTA Arbitration award.
1.9 "Notice of Barring" means a written statement from IFTA notifying a Person that it is barred from attending the next AFM. The Notice of Barring shall be sent by certified or registered mail, courier, telex, facsimile or email to the address, facsimile number or email address shown for the Non-Prevailing Party in the parties' agreement or to any address, facsimile number or email address which the Prevailing Party or IFTA Arbitrator has been informed by the Person or which is known to be the last known place of business, habitual residence, mailing address, facsimile number or email address of the Person.
1.10 "Participant" means any Exhibitor, Buyer, Industry Attendee, Sponsor, Affiliate or any other Person who may participate at the AFM or who may otherwise utilize the facilities or services of the AFM or IFTA.
1.11 "Person" means any natural person or legal entity.
1.12 "Prevailing Party" means any Person who was a party to an IFTA Arbitration, in whose favor the arbitrator rendered an IFTA Arbitration award or any Person who was the assignee or successor to the rights of such Person under an agreement described in Paragraph 1.2 of this Section Three B.
1.13 "Related Entity" means any legal entity which is determined to be substantially related to a Non-Prevailing Party that has been barred pursuant to Section Three B. of the AFM Guidelines and which seeks to continue the business of the barred Non-Prevailing Party.
2. Prevailing Party’s Demand to Bar a Non-Prevailing Party:
If any Prevailing Party has obtained a Confirmed Award in an IFTA Arbitration and the Non-Prevailing Party has not fully satisfied such Confirmed Award, then the Prevailing Party may apply to IFTA to bar the Non-Prevailing Party from attending the AFM in accordance with the following:
2.1 The Prevailing Party must submit to IFTA a written demand containing all information required by the applicable provision(s) of these Guidelines (the “Demand”) requesting that the Non-Prevailing Party be barred from the AFM in accordance with the AFM Guidelines for failure to satisfy a Confirmed Award; and
2.2 A Demand may be submitted any time after a Confirmed Award has been rendered provided that no further appeal is available to any Non-Prevailing Party or Prevailing Party by a court of competent jurisdiction. IFTA will not bar the Non-Prevailing Party from the AFM unless a Demand that meets all of the requirements of Paragraph 2.3 of this Section Three B. is received by IFTA at least seventy-five (75) calendar days prior to the start of such AFM; and
2.3 A Demand must contain: (i) a statement, to the best of the Prevailing Party's knowledge describing the identity of the Non-Prevailing Party and the Non-Prevailing Party's current address, telephone, facsimile and other contact information; (ii) a copy of the final award rendered against the Non-Prevailing Party in the IFTA Arbitration; (iii) a copy of the judicial order making the IFTA Arbitration award a Confirmed Award; (iv) a copy of the Prevailing Party's Due Notice to the Non-Prevailing Party demanding satisfaction of the Confirmed Award; (v) a statement of the exact amount of and/or conditions of the Confirmed Award as of the date of the Demand; (vi) a statement from an authorized executive or officer of the Prevailing Party or its legal counsel that all of the documents and information submitted to IFTA are true and correct to the best of his or her knowledge and (vii) a statement from an authorized executive or officer of the Prevailing Party or its legal counsel that the judgment is final pursuant to Paragraph 1.4 of this Section Three B. to the best of his or her knowledge.
3. Demand to Bar a Related Entity:
Either in conjunction with or subsequent to a Demand to Bar a Non-Prevailing Party, the Prevailing Party may apply to IFTA to bar a Related Entity from attending the AFM in accordance with the following:
3.1 The Prevailing Party must submit to IFTA a Demand requesting that the Related Entity be barred from the AFM; and
3.2 A Demand may be submitted any time after a Confirmed Award has been rendered provided that no further appeal is available to any Non-Prevailing Party or Prevailing Party by a court of competent jurisdiction. IFTA will not bar the Related Entity of a Non-Prevailing Party from the AFM unless: (i) the Non-Prevailing Party has been barred; and (ii) a Demand that meets all of the requirements of Paragraph 3.3 of this Section Three B. is received by IFTA at least seventy-five (75) calendar days prior to the start of such AFM; and
3.3 A Demand requesting that a Related Entity be barred from the AFM must contain all of the requirements for filing a Demand to Bar a Non-Prevailing Party, set forth in Paragraph 2.3, above, and any and all written evidence that demonstrates that the entity to be barred is substantially related to the Non-Prevailing Party and continues to conduct the business of the barred Non-Prevailing Party. Such written evidence demonstrating substantial relatedness may include one or more of the following: (i) common ownership of business operations; (ii) the sharing or assignment of the Non-Prevailing Party’s film rights; (iii) the sharing, assignment or acquisition of substantial assets of the Non-Prevailing Party; (iv) the same principal(s) as the Non-Prevailing Party; (v) the same director(s) and/or officer(s) as the Non-Prevailing Party; (vi) the same parent company as the Non-Prevailing Party; (vii) the same office or business address as the Non-Prevailing Party; (viii) the same employee(s) as the Non-Prevailing Party; (ix) the same agent for service of process as the Non-Prevailing Party; and/or (x) other evidence relevant to a determination that the second company is subject to common direction and control and seeks to continue the business of the Non-Prevailing Party at the AFM.
4. Notice of the Demand from IFTA
4.1 Notice to the Non-Prevailing Party: In accordance with Paragraph 2 of this Section Three B., IFTA or persons authorized by IFTA will promptly evaluate the Demand for compliance with this Section. Subject to the deadline set forth in Paragraphs 2.2 and 3.2, above, any defect in the Demand will cause it to be returned to the Prevailing Party for resubmission in the proper form. Upon determination that a Demand satisfies the applicable AFM Guidelines within the deadline, IFTA will provide the Non-Prevailing Party and, if applicable, any entity which the Prevailing Party claims is a Related Entity, notice of the Demand. Failure to fully satisfy the Confirmed Award may result in the Non-Prevailing Party and, if applicable, any Related Entity being barred from the AFM.
4.2 Within five (5) business days of IFTA’s sending such Notice to the Non-Prevailing Party and, if applicable, any entity which the Prevailing Party claims is a Related Entity, such entity shall either submit written evidence refuting the Prevailing Party’s evidence in support of the Demand or request in writing a hearing.
5. Hearing on the Demand to Bar a Related Entity
If the entity which the Prevailing Party claims is a Related Entity to a Non-Prevailing Party wishes to request a hearing on the Demand, then it must submit a written request to IFTA within five (5) business days of IFTA’s notice in order to set a date and time for hearing. Such hearing will be held in Los Angeles and shall be set for no later than ten (10) business days from the date of receipt of the request for hearing. IFTA shall send notice of the hearing to the Prevailing Party, Non-Prevailing Party and the entity that is subject of the Demand. The parties may participate by telephone. Failure to timely request a hearing in writing will permanently waive the right to any such hearing.
5.2 The notice of hearing shall also include a list containing the names of the members of the committee that will determine whether the entity is substantially related to a barred Non-Prevailing Party and whether that entity seeks to carry on the business of the barred Non-Prevailing Party. Either the Prevailing Party or the entity that is subject of the Demand may object, in writing, to the participation of one or more members of the committee based upon clear evidence of bias or conflict of interest. Such objections shall be made to IFTA within five (5) business days of receipt of the names of the members of the committee and shall state the name of the committee member(s) and reasons for such objection. Failure to file a written objection within said time period will waive any such objection. IFTA’s determination as to any objections shall be final and not subject to appeal.
5.3 The hearing shall not be a legal proceeding. Evidentiary rules will not be followed by IFTA during the hearing, cross-examination of witnesses will not be permitted, no recording shall take place (other than the minutes) and it is permitted, but not required, that counsel for the parties be present. However, it is expected that the principals of the Prevailing Party and the entity that is subject of the Demand will personally provide evidence in support of their respective claims. IFTA reserves the right to limit the hearing to no more than two (2) hours and shall allot equal time to each party for the presentation of evidence.
5.4 The entity that is subject of the Demand to Bar a Related Entity may submit written evidence or, if a hearing has been properly requested, oral evidence refuting the Prevailing Party’s claims that it is a Related Entity of the Non-Prevailing Party.
5.5 If either party fails to appear at the hearing, IFTA shall have the right to render a decision based upon the evidence, except that no barring shall be made without the Prevailing Party establishing a prima facie case to the satisfaction of IFTA. IFTA shall render its decision, in writing, and send such decision to the Prevailing Party, Non-Prevailing Party and the entity that is subject of the Demand within five (5) business days of the hearing. Any entity determined to be a Related Entity will be sent the decision along with a Notice of Barring.
6. Barring From American Film Market:
6.1 If, within ten (10) calendar days of transmission of IFTA's notice of the Demand to the Non-Prevailing Party, IFTA has not received written evidence from the Non-Prevailing Party that it has satisfied the Confirmed Award, and if applicable, paid all related interest and costs, then IFTA will send a Notice of Barring to the Non-Prevailing Party stating that the Non-Prevailing Party may not attend the next AFM in any capacity whatsoever. Notwithstanding the Notice of Barring, upon submission at any time to IFTA of irrefutable evidence, in a form satisfactory to IFTA, that such Confirmed Award plus interest and costs (if applicable) has been satisfied, IFTA will lift the barring. However, with respect to an Exhibitor, if such evidence is not submitted to IFTA at least twenty-one (21) calendar days prior to the start of such AFM, Exhibitor’s office will be deemed abandoned and all previously paid office and exhibitor fees will be forfeited.
6.2 After reviewing the evidence submitted refuting the Demand to Bar, either through written submission or oral hearing (if properly requested), IFTA, in its sole discretion, shall make a determination as to whether a legal entity is substantially related to a barred Non-Prevailing Party for the purposes of barring such Related Entity from the AFM. Upon a determination that a legal entity is a Related Entity of a Non-Prevailing Party, IFTA will send a Notice of Barring to the Related Entity stating that the Related Entity may not attend the next AFM in any capacity whatsoever. Notwithstanding the Notice of Barring, the Related Entity may request that the decision be reviewed by the IFTA Board of Directors. Such request must be made in writing and submitted to IFTA no later than two (2) business days from receipt of IFTA’s decision. The Board’s review shall be limited to whether the committee that determined the entity to be a Related Entity followed appropriate procedures and applied the AFM Guidelines in a consistent manner. The committee shall not participate in any vote in the review. There shall be no hearing or appearances by either party before the Board of Directors during the review on appeal and the determination of the Board of Directors shall be final. The Board reserves the right to hold such deliberations during an Executive Session.
6.3 If the Related Entity is an Exhibitor, the Board shall issue its final opinion no later than twenty-one (21) calendar days prior to the start of the AFM. However, the cancellation and refund deadline will not be adjusted for any AFM deposits made by a Related Entity that has been barred and any deposits shall be forfeited by the Related Entity.
7. Renewal of Demand:
A Prevailing Party may file a second Demand to Bar a Non-Prevailing Party and/or Related Entity from attending a second AFM upon the satisfaction of the applicable conditions in Paragraphs 2., 3., 4., 5. and 6. of this Section Three B. However, in no case may a Non-Prevailing Party or Related Entity be barred from attending more than two (2) AFMs for failure to satisfy the same Confirmed Award, nor may a Related Entity be barred if the Non-Prevailing Party is no longer barred.
8. Withdrawal of Demand:
A Prevailing Party may at any time withdraw its Demand in writing, even after Notice of Barring has been sent to a Non-Prevailing Party and/or Related Entity and IFTA will lift the barring accordingly. If the withdrawal is made in sufficient time to allow the Non-Prevailing Party and/or Related Entity a reasonable opportunity to attend the AFM, then IFTA will send the Non-Prevailing Party and/or Related Entity a notice that the Demand was withdrawn and it will be treated as null and void. Notwithstanding such withdrawal, if the Non-Prevailing Party and/or Related Entity is an Exhibitor, the provisions of Paragraph 6. of this Section Three B. will apply.
9. Indemnification of IFTA:
As a condition of IFTA sending its notice of a Demand to bar a Non-Prevailing Party and/or Related Entity, the Prevailing Party agrees to indemnify and hold harmless IFTA and its officers, executives, representatives, employees, and Members (other than the Non-Prevailing Party and/or Related Entity) from any claims, costs, liabilities, damages, judgments or expenses (including attorneys' fees) which arise in connection with such notice and barring of the Non-Prevailing Party and/or Related Entity, including the publication of barring information, on such terms and conditions as IFTA believes appropriate. The Prevailing Party's Demand shall constitute the Prevailing Party's agreement to indemnify and hold harmless IFTA.
10. Publication:
IFTA may in its sole discretion publicize information regarding a barring and/or any decision by IFTA in connection with a Demand or IFTA Arbitration generally.
C. BARRING FROM ATTENDANCE AT AFM FOR FAILURE TO PAY
IFTA OR IFTA ARBITRATION FEES
If a Person agrees to use the IFTA Rules for International Arbitration, then the Person must satisfy all of its outstanding financial obligations to IFTA and the IFTA Arbitrator(s) involved upon conclusion of an IFTA Arbitration (e.g. settlement, dismissal, issuance of an award or otherwise closed so that neither IFTA nor any IFTA Arbitrator has jurisdiction over the IFTA Arbitration), provided that any final award issued has not been set aside or vacated by a court of competent jurisdiction.
All such obligations to IFTA and the IFTA Arbitrator(s) must be fully satisfied before a Person, whether Prevailing Party or Non-Prevailing Party, may participate in an AFM. In the case of unpaid obligations to IFTA, whether related to IFTA Arbitration or otherwise, IFTA may bar any Person from such AFM at its sole discretion. Failure to fully satisfy such obligations may result in a Person being barred from the AFM for up to two (2) AFMs.
If an IFTA Arbitrator has not been paid his or her fees by either party upon conclusion of an IFTA Arbitration, then the IFTA Arbitrator may apply to IFTA to bar such Person from attending the AFM in accordance with the AFM Guidelines. An IFTA Arbitrator’s “Request” to bar a Person must contain: (i) a statement, to the best of the IFTA Arbitrator’s knowledge, describing the identity of the Person owing the fees and the Person’s current address, telephone, facsimile and other contact information; (ii) a statement that the IFTA Arbitration has concluded; (iii) a statement that to the best of the IFTA Arbitrator’s knowledge the award, if one was issued, has not been vacated; (iv) a copy of the itemized invoice of fees and the amount owed by the Person; and (v) a copy of the IFTA Arbitrator’s correspondence to the Person demanding payment of the outstanding fees. IFTA will not bar any Person from the AFM unless a Request that meets all of the requirements of this Section Three C. is received by IFTA at least seventy-five (75) calendar days prior to the start of such AFM.
Upon determination that a Request satisfies the AFM Guidelines, IFTA will send a Notice of Barring to the Person stating that the Person may not attend the next AFM in any capacity whatsoever. Notwithstanding any Notice of Barring, upon submission at any time to IFTA of irrefutable evidence, in a form satisfactory to IFTA, that the outstanding financial obligations have been paid to IFTA or the IFTA Arbitrator, IFTA will lift the barring. However, with respect to an Exhibitor, if such evidence is not submitted to IFTA at least twenty-one (21) calendar days prior to the start of such AFM, Exhibitor’s office will be deemed abandoned and all previously paid office and exhibitor fees will be forfeited.
D. SPECIAL CONCERNS FOR EXHIBITORS
Under no circumstances may an Exhibitor badge any Person or Related Entity who (a) has been barred from the AFM or (b) is employed by or (c) is a consultant to a company that has been barred from attendance at this year's AFM. Any individual who was badged at the last AFM by a currently barred company will be presumed to still be in the employ of such barred company. An Exhibitor may badge such an individual only on presentation of bona fide documentary evidence that such individual is no longer employed by the barred company. Subject to Section Three B., Paragraph 10. of these AFM Guidelines, a list of all barred Non-Prevailing Parties, Related Entities and Persons will be available at www.americanfilmmarket.com at least twenty-one (21) calendar days prior to the AFM and will be updated, if necessary, as changes occur.
Any Exhibitor that badges a Person, Non-Prevailing Party or Related Entity in violation of the AFM Market Rules may be assessed a $2,000 fine per infringement. In addition, the Exhibitor's badges may be revoked, and the Exhibitor may be prohibited from attending future AFMs.
SECTION FOUR: APPLICATION AND ENFORCEMENT OF AFM MARKET RULES
IFTA reserves the right to determine the application and enforcement of the AFM Market Rules. Failure to abide by the AFM Market Rules, including the AFM Guidelines, may result in revocation of previously granted badges and/or prohibition of the company, its Affiliates, and all such individuals from participating at future American Film Markets. No Person at the AFM may conduct business in the name of a barred company. Engaging in business on behalf of a barred Person is a violation of the AFM Market Rules and will result in a revocation of badge privileges and the Person conducting such business may be individually prohibited from attending future AFMs. In the event of such badge revocation, IFTA shall have the absolute right to prohibit entry to the AFM. Also, in such event, the Person shall not be entitled to a refund or rebate of any fees previously paid to the AFM or to IFTA, nor shall the AFM or IFTA be responsible in any way for any of the costs which the company, or such individuals, may have incurred in connection with, preparation for, or attendance at the AFM.