Terms and Conditions
1. FURNISHING MATERIALS, SERVICES, & RELEASES
A. Client: Client shall supply scripts, storyboards, product props, production notes, music, celebrity talent, creative guidance/supervision, and related clearances, unless otherwise noted in the Proposal. Contractor is not responsible for Editorial/Post Production subcontract.
Client will supply track or musical composition(s) and rights clearances unless otherwise specified.
Client is responsible for consents, waivers or releases from all talent and all persons or entities who have rendered services to Contractor in connection with the Specified Media(s), unless specified otherwise.
B. Contractor: Contractor shall deliver the completed project media(s) pursuant to this Agreement and the requirements of Proposal.
2. CHANGES IN SPECIFICATIONS
If at any time, Client desires to make any changes or variations from the completed project, script(s) or storyboard(s) or from any material or work in progress, and such changes result in additional costs to Contractor, including person hours, reimbursement for such additional costs shall be payable in accordance with the terms of this Agreement for final payment.
Except as otherwise provided herein, Contractor owns all rights, title and interest in and to all media(s) subject of this Agreement, including all copyrights therein as well as in and to all the exposed negatives, positives, out-takes and clips. Contractor grants Client worldwide, nontransferable license to the Specified Media(s).
Contractor understands that some information for said media(s) may be of a confidential and/or sensitive nature. Contractor agrees, at Client’s written request, to require, within reason, those engaged for the production to sign appropriate agreements not to discuss or disclose information about the product or the Specified Media(s) except as such disclosure may be necessary for Contractor to produce media(s) in the usual and customary manner under this Agreement.
5. INDEPENDENT CONTRACTOR
It is understood that Contractor status under this Agreement is that of an independent contractor and that all persons engaged by Contractor in performing its obligations shall not be deemed employees of Client.
6. Contractor WARRANTIES Contractor represents and warrants:
A. That Contractor has full right to enter into this Agreement and to perform its obligations hereunder and will comply with all applicable Laws, ordinances and regulations and with all applicable union agreements to which Contractor is a signatory.
7. CLIENT WARRANTIES Contracting Client represents and warrants:
A. Client shall pay Contractor within the times specified in the proposal. All talent contracting forms (e.g. “Exhibit A’s”) and the filing thereof, in connection with such talent, is the direct responsibility of the Client.
8. DELIVERY OF MATERIALS
Delivery of the Specified Media(s) shall mean delivery of the referenced media(s) in paragraph 1 by Contractor to Client.
Client understands that the specified terms of payment under this Agreement are based upon timely cash payments within the timescales specified in the proposal. If Client chooses to defer paying any amount beyond the date on which it is due, Client will be charged 10% on unpaid amounts until paid, compounded monthly.
Client agrees to indemnify, defend, and hold harmless Contractor and its officers, employees, agents and licensees from and against any and all claims, actions, damages, liabilities and expenses, arising out of the breach of any obligation, warranty or representation in this Agreement. Client shall indemnify Contractor against all claims and expenses arising from uses for which the client does not have rights to or authority to use. The client will be responsible for payment of any special licensing or royalty fees resulting from the unauthorized use of graphics, music, video, film, photography, design, animation, and branded content.
11. TAX LIABILITY
Any sales tax, use tax, or other tax payable on production and delivery of Specified Media(s) to Client(s) (other than sales tax arising from Contractor’s purchases of materials or supplies in connection with the production) shall be the responsibility of Client who shall pay, defend and hold harmless Contractor from payment of any such taxes.
This Agreement may not be assigned by either party without the written consent of the other.
13. INSURANCE COVERAGE (3)
Client shall obtain, pay for and maintain Professional Liability (Errors and Omissions Liability) insurance covering all intellectual property right infringement(s) that arise from any and all uses of the media. Contractor will be notified in writing prior to signing this Agreement. Client will obtain and maintain insurance coverage with respect to Agency/Client job(s) at no cost to Contractor and name Contractor and Director as a “named insured” on said policies prior to the commencement of preproduction. All Agency/Client supplied insurance will be deemed to be the primary coverage and issued on a non-contributory basis. Agency/Client Umbrella Liability limit will be $10,000,000. Client will be responsible for any additional insurance premiums resulting from the need to purchase special coverage not provided by the coverage and pay any and all deductibles associated with Client insurance program. Client will indemnify, defend and hold harmless Contractor and Director for any and all claims, demands, actions including defense costs and attorneys fees for claims arising from the media(s) and the failure of the Agency/Client insurance program to be as broad as the Contractor’s coverage.
Any alterations of original art (color shift, mirroring, flopping and paste) creating additional art is prohibited without the express permission of Contractor. Contractor will be given first opportunity to make any alterations required. Unauthorized alterations shall constitute in additional use and will be billed accordingly.
15. CONTINGENCY AND WEATHER DAYS
A. A contingency day is any day where a scheduled media/film shooting has been prevented from occurring due to circumstances beyond the control of the production company.
B. These circumstances may include but should not be limited to: (1) Weather conditions (rain, fog, sleet, hail, or any adverse condition that is not consistent with the prescribed shooting conditions desired by the Client). (2) Injury, illness, or absence of client-supplied elements (e.g. key talent, color correct products). (3) “Force majeure” (meaning but not limited to, earthquake, riot, fire, flood, volcanic eruption, acts of war, strikes, labor unrests, civil authority, terrorism, and acts of God). (4) “Client Insured Re-Shoots” (any additional days for a job insured by the Client, who is therefore authorizing the expenditure). The Client should be provided with a contingency day cost which should be approved prior to proceeding with that shoot day.
C. The Production Company recognizes its obligation to minimize contingency day liabilities and will apply accepted industry cancellation practices.
D. The Production Company will quote the maximum exposure figure (a “not to exceed” figure) as a contingency day cost. This will be a cost per day figure. However, this figure does not include the cost of premiums for crew or suppliers (i.e., should the contingency day fall on weekends, holidays or premium days based on consecutive employment).
16. CANCELLATION AND POSTPONEMENT
A cancellation or postponement is defined as a rescheduling of the production to a later specific date caused or directed by Client or a total cancellation of the project. If the Production Company blocks out a specific period of time with the agreement that it represents a firm commitment from the Client, then the Production Company makes no further efforts to sell the time. If the job is canceled or postponed within the Guideline time frame, it is unlikely that this time can be re-booked. It should be understood that this time represents the Production Company’s only source of income.
Cancellation and Postponement: Film or Digital Video Production:
A. If notice of cancellation/postponement is given to the Contractor ONE TO TEN WORKING DAYS prior to the commencement of the shoot, the Client will be liable to the Contractor for: (1) All out-of-pocket costs; (2) %70 of the agreed production fee
B. If notice of cancellation/postponement is given ELEVEN TO FIFTEEN WORKING DAYS prior to the commencement of the shoot, the Client will be liable to the Production Company for: (1) All out-of-pocket costs; (2) %50 of the agreed production fee
C. If notice of cancellation/postponement is given MORE THAN FIFTEEN WORKING DAYS prior to the commencement of the shoot, the Client will be liable to the Production Company for: (1) All out-of-pocket costs; (2) %25 of the agreed production fee
Cancellation and Postponement: CGI or Animation Production:
If notice of cancellation/postponement is given MORE THAN HALFWAY THROUGH the production schedule of the job, that is between the award or start date and the final delivery date, the Client will be liable to the Production Company for the full cost of the job as a bid.
17. PUBLICITY GUIDELINES
Unless otherwise specified in the proposal, Contractor has a license to use finished media(s) for promotional purposes.
18. DISPUTE RESOLUTION
The prevailing party in any legal action shall be entitled to attorney’s fees and costs in connection with the legal proceedings.
19. ENTIRE AGREEMENT AND MODIFICATION
This Agreement, Proposal and any Addenda attached hereto shall constitute the entire agreement between Contractor and Client. Any amendment hereto must be in writing and signed by each party.
The captions are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or intent of this Agreement or of any provision hereof.
21. NO WAIVER
Failure of any party to this Agreement to exercise any rights shall not constitute a waiver of those rights.
If one or more of the provisions of this Agreement shall be held unenforceable, it shall not affect the enforceability of the other provisions.
23. EQUAL OPPORTUNITY
In connection with its performance hereunder, Contractor agrees not to discriminate against any employee or applicant because of race, religion, sexual orientation, color, sex, national origin, age, disability, or any other factor protected by federal, state or local law.
24. APPLICABLE LAW
This Agreement shall be interpreted and governed by the local laws of the jurisdiction where the Contractor is located as set forth on Page 1 of this Agreement.